Boston College Environmental Affairs Law Review

Volume 22 | Issue 2 Article 6

12-1-1995 Boston Harbor: The Anatomy of a Court-Run Cleanup Andrew Thomas Savage

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Recommended Citation Andrew T. Savage, Boston Harbor: The Anatomy of a Court-Run Cleanup, 22 B.C. Envtl. Aff. L. Rev. 365 (1995), http://lawdigitalcommons.bc.edu/ealr/vol22/iss2/6

This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Environmental Affairs Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. BOSTON HARBOR: THE ANATOMY OF A COURT-RUN CLEANUP

Andrew Thomas Savage*

We still have a ways to go before its Aruba. 1

Love that diriy water, Boston you're my home. 2

1. INTRODUCTION Boston Harbor is one of New England's greatest natural resources. As the largest seaport in New England, Boston Harbor is a center for the East's shipping and shipbuilding industries.3 The Harbor is also home to extensive fish and shellfish markets.4 In addition, Boston Harbor serves as a recreational center to the residents of Massachu­ setts and to tourists.5 In the summer, hundreds of thousands of people flock to the more than thirty beaches that line the coastal and island shores of Boston Harbor.6 Yet despite the importance of the continued vitality of Boston Harbor to New England, and especially Massachu­ setts, by 1988 the continuous pollution of Boston Harbor had earned it the infamous label of "America's Dirtiest Harbor."7 In 1985, under pressure from the courts, the Massachusetts Legis­ lature created the Massachusetts Water Resources Authority

* Managing Editor, 1994-1995, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW. 1 Scott Allen, Boston Harbor's Waters Have Started To Heal; Cleanup Helping To Shed 'Dirtiest'Label, BOSTON GLOBE, Sept. 6, 1992 (Metro/Region), at 1. 2 THE STANDELLS, DIRTY WATER (circa 1965). 3 David Doneski, Comment, Cleaning Up Boston Harbor: Fact or Fiction?, 12 B.C. ENVTL. AFF. L. REV. 559, 559 (1985). 4 Charles M. Haar, Boston Harbor: A Case Study, 19 B.C. ENVTL. AFF. L. REV. 641, 642 (1992). 5 Doneski, supra note 3, at 559. 6 [d. 7 Jeff Hecht, Raising a Stink in Boston, NEW SCIENTIST, Dec. 5, 1992, at 32. 365 366 ENVIRONMENTAL AFFAIRS [Vol. 22:365

(MWRA).8 The MWRA, under court supervision, was placed in charge of cleaning up Boston Harbor.9 That clean-up project commenced in 1985 and is still ongoing. lO As the cleanup of Boston Harbor has progressed over the past nine years, the Harbor has seen improve­ ments in both water quality and the health of the aquatic life that resides in the Harbor.ll This progress has not been unimpeded however. Almost every major component of the clean-up project has been challenged by either environmental groups, local citizens, and/or the state and fed­ eral government.12 At the center of each of these controversies has been Judge A. David Mazzone, the United States District Court Judge in charge of overseeing the cleanup,13 In light of the history of the pollution of Boston Harbor and the political and economic pres­ sures on the MWRA, Judge Mazzone's role in the cleanup of the Harbor has been essential. Indeed, absent Judge Mazzone's involve­ ment in the Boston Harbor Cleanup, it is unlikely that the cleanup would have progressed as it has. This Comment will chronicle the progress of each of the major components of the Boston Harbor Cleanup. The reasons for the suc­ cesses and failures of each project will be explored. The role of the court and Judge Mazzone will also be explored in an attempt to determine what the benefits and drawbacks are to a court-run environmental cleanup. Section II provides a history of the pollution problem in Boston Harbor. Section III looks at the Metropolitan Sewerage System and its contribution to the pollution of Boston Harbor. Section IV explores the various components of the cleanup and discusses the challenges that each has faced. Section V discusses how the cleanup is being funded and the political repercussions of its cost. Finally, Section VI evaluates the roles of the major parties involved in the cleanup, discusses how the court may have affected the significance of these players, and looks at the future of the Boston Harbor Cleanup.

II. HISTORY OF BOSTON HARBOR POLLUTION Bostonians first began polluting their harbor in 1773 when they threw a shipment of tea into Boston Harbor in protest of British

8 1984 Mass. Acts 372, § 3(a). 9 Doneski, supra note 3, at 608. 10 Hecht, supra note 7, at 32. 11 See Scott Allen, Boston Harbor's Waters Have Started 1b Heal; Cleanup Helping to Shed "Dirtiest" Label, BOSTON GLOBE, Sept. 6, 1992 (Metro/Region), at 1. 12 See infra notes 127, 167, and 284 and accompanying text. 13 See infra notes 127, 167, and 284 and accompanying text. 1995] BOSTON HARBOR 367 import taxes. Since then Boston Harbor has been treated as every Bostonian's collective toilet. In 1876, Boston's first sewer system was constructed.14 That system collected sewage and storm run-off at Deer, Nut, and Moon Islands and then discharged that raw, untreated waste into the Harbor with the outgoing tide.15 The novelty of a system taking advantage of the outgoing tide won Boston an interna­ tional design award when it was first introduced.16 Unfortunately, a substantial portion of the waste discharged on the outgoing tide sim­ ply returned to pollute the Harbor with the next incoming tide.17 It was not until 1952 that Boston began to treat the sewage it poured daily into Boston Harbor.18 The city of Boston constructed primary treatment plants on Nut Island in 1952 and on Deer Island in 1968 which were designed to remove the solid wastes from the sewage prior to the discharge of the liquid waste, called effluent, into the Harbor.19 This process, however, did little to reduce the amount of wastes being discharged into Boston Harbor.20 The solid wastes, known as "sludge," that were initially removed by primary treatment were later discharged directly into the Harbor after only a brief period of additional decomposition treatment.21 In 1972, Congress amended the Federal Water Pollution Control Act of 1948 (FWPCA),22 requiring, among other things, that all pub­ licly owned treatment works (POTWs) that dump sewage into waters of the United States install both primary and secondary treatment equipment by July, 1977.23 Boston was automatically in violation of the

14 Hecht, supra note 7, at 32. 16 [d. 16 [d. 17 [d. 18 [d. at 33. 19 [d. 20 See id. 21 [d. "Sludge" discharges into Boston Harbor continued until December 26th, 1991. Boston Ends 40-Year Practice ofDumping Sludge into Harbor, SLUDGE, Jan. 1, 1992, at 1,3. The sludge is placed in digestion tanks in which bacteria is used to speed up the decomposition of the wastes. Doneski, supra note 3, at 570. 22 33 U.S.C.A. §§ 1251-1387 (1982). These amendments are commonly referred to as the Clean Water Act of 1972. 23 33 U.S.C. § 1311(b)(1)(B) (1976). In 1977, Congress pushed back the deadline for secondary treatment to July 1, 1983 for municipalities who, because of inadequate funding, had been unable to meet the initial deadline. Pub. L. No. 95-217, § 45, 91 Stat. 1585; H.R. REP. No. 270, 97th Cong., 1st Sess. 2, reprinted in 1981 U.S.C.C.A.N. 2629, 2630; S. REP. No. 370, 95th Cong., 1st Sess. 1"'{), reprinted in 1977 U.S.C.C.A.N. 4326, 4327~1. Many municipalities had inadequate funding because in the first few years of the program federal grants were held up by the executive, the 1972 amendments having been passed over President Nixon's veto. Doneski, supra note 3, at 587-88. In 1981, the deadline for secondary treatment was extended again, this 368 ENVIRONMENTAL AFFAIRS [Vol. 22:365 secondary treatment requirement, as were many other municipalities, including Los Angeles, Seattle, and Miami.24 However, while these other cities took steps to update their sewer systems to comply with the 1972 amendments, Boston demonstrated its apathy toward the problems facing its Harbor.25 Instead of taking immediate steps to implement secondary treat­ ment, Boston's primary response to the requirements of the 1972 amendments was to commission a study of the Metropolitan Sewerage System (MSS).26 That study, the Boston Harbor Eastern Massachu­ setts Metropolitan Area Wastewater Management and Engineering Study (EMMA), was conducted by the Metropolitan District Commis­ sion (MDC) and the United States Army Corps of Engineers.27 It was not completed until 1976, four years after the 1972 amendments.28 When the EMMA study was finally published, it made a number of recommendations, including the implementation of secondary treat­ ment at both the Deer Island and Nut Island treatment plants in compliance with the Clean Water Act (CWA).29 The magnitude of the potential environmental effects of the proposed improvements to the MSS required that the United States Environmental Protection Agency (EPA) prepare an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA).30 While

time until July 1, 1988. [d. This additional extension was in response to the Municipal Waste Water Treatment Construction Grant Amendments, which severely reduced federal funding for these projects. [d. 24 Hecht, supra note 7, at 33. 25 [d. 26 Doneski, supra note 3, at 595-96. 27 [d. The Metropolitan District Commission controlled the operation of the Metropolitan Sewer System until 1985. The MDC is overseen by the Massachusetts Executive Office of Environmental Affairs and is also charged with the operation and maintenance of Greater Boston's parks and other recreational facilities. [d. at 562. 28 [d. at 596. 29 [d. The EMMA study also recommended improvements and repairs at the primary treat­ ment plants on Deer Island and Nut Island, incineration of all "Sludge" produced by treatment at Deer Island, and corrective measures to reduce the overflow problems with Boston's com­ bined sewer systems. [d. 30 [d. at 597. The National Environmental Policy Act generally requires federal agencies to evaluate the potential environmental impact of proposed agency projects. National Environ­ mental Policy Act, § 102,42 U.S.C. § 4332 (1988). While most EPA actions do not require an Environmental Impact Statement because EPA's goals are consistent with the mandate of NEPA, EPA is required to prepare EISs prior to issuing new NPDES permits and granting federal aid for POTW construction projects. Doneski, supra note 3, at 589. The proposed projects set forth in the EMMA study would have been eligible for some federal funding and thus required an EIS. [d. 1995] BOSTON HARBOR 369

Boston was waiting for EPA to complete that EIS, Congress passed the 1977 amendments to the Federal Water Pollution Control Act.31 The 1977 amendments to the FWPCA included a "waiver" provi­ sion that allowed municipalities discharging into marine waters to apply for an exemption to the secondary treatment requirement set out in the 1972 amendments to the FWPCA.32 So instead of going forward with the creation of secondary treatment facilities pursuant to the recommendations of EMMA, then Massachusetts Governor Michael Dukakis chose to apply for a waiver exempting the MSS from secondary treatment requirements.33 The delay in the commencement of the cleanup of Boston Harbor proved disastrous.34 EPA ultimately rejected Boston's secondary treatment waiver application and, to make matters worse, while Bos­ ton awaited the waiver decision, it missed the opportunity to have seventy-five percent of the costs of the cleanup of Boston Harbor paid for by the federal government.35 As a result, the communities serviced

31 Id. at 596. 32 33 U.S.C. § 1311(h) (1976 & Supp. II 1978); Doneski, supra note 3, at 587. To qualify for a waiver for secondary treatment the municipality is required to demonstrate that: (1) There is an applicable water quality standard specific to the pollutant for which modification is requested; (2) Such modified requirements will not interfere with the attainment of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife, and allows recreational activities, in and on the water; (3) The applicant has established a system for monitoring the impact of such discharge on a repre­ sentative sample of aquatic biota to the extent practicable; (4) Such modified require­ ments will not result in any additional requirements on any other point or non point source; (5) All applicable pretreatment requirements for sources introducing waste into such treatment works will be enforced; (6) To the extent practicable, the applicant has established a schedule of activities to eliminate the entrance of toxic pollutants from non industrial sources into such treatment works; (7) There will be no new or substan­ tially increased discharges from the point source of the pollutant to which the modifica­ tion applies above the volume of discharge specified in the permit. 33 U.S.C. § 1311(h) (1982). 33 Conrad B. MacKerron, Remedies For Boston Harbor's Ills, CHEMICAL WEEK, Sept. 21, 1988, at 34. In 1972, Governor Francis Sargeant had committed himself to the construction of a secondary treatment plant by 1980, but in 1974, when Governor Michael Dukakis took office, he maintained that Boston Harbor could be cleaned up at less expense through enhanced primary treatment facilities. I d. 34 See Hecht, supra note 7, at 33. 35 Id. The 1972 amendments to the FWPCA had provided for substantial federal funding for POTW construction projects. 33 U.S.C. § 1281 (1976); H.R. REP. No. 270, supra note 23, at 2, reprinted in 1981 U.S.C.C.A.N. at 2630. However, in 1981, Congress passed the Municipal Waste Water Treatment Construction Grant Amendments which allowed for substantial cutbacks in the federal grant program. Pub. L. No. 97-117, 95 Stat. 1622. Michael Deland, former head of the United States Environmental Protection Agency's Region I office, located in Boston, re­ ferred to Dukakis's delay in the commencement of the Harbor Cleanup as "the most expensive 370 ENVIRONMENTAL AFFAIRS [Vol. 22:365

by the MSS were faced with shouldering almost ninety-two percent of the cost of the cleanup.36 The overwhelming commitment of re­ sources necessary for the commencement of the cleanup resulted in even more delays.37 Finally, in 1982 and 1983, three lawsuits were filed against the MDC, forcing the cleanup of Boston Harbor to begin.38 Boston's southern neighbor, the city of Quincy, filed the first lawsuit in December of 1982, charging the MDC with violations of the Mas­ sachusetts Clean Waters Act and common law nuisance.39 In June of 1983, both the Justice Department, on behalf of EPA, and the Con­ servation Law Foundation (CLF) also filed suits against the MDC.40 EPA charged the MDC with violating its National Pollutant Dis­ charge Elimination System (NPDES) permit by failing to monitor discharges from Nut Island.41 The CLF sought a court-mandated cleanup of the Harbor.42 In February of 1984, EPA settled its lawsuit with the MDC and, one month later, the CLF's lawsuit was suspended awaiting future developments in City of Quincy v. Metropolitan Dis­ trict Commission.43 In City of Quincy v. Metropolitan District Commission, Quincy claimed that the discharge of wastes into Boston Harbor was polluting

public policy mistake in the history of New England." Larry Tye, Dukakis Nails Bush for Politicking on Harbor Then Ignoring It, BOSTON GLOBE, Feb. 1, 1990 (Metro/Region), at 25. 36 Boston Harbor: Ratepayers Stage Another Tea Party, Greenwire (Clean Water), May 17, 1993. 37 See, e.g., Hecht, supra note 7, at 33. 38 Complaint, City of Quincy v. Metropolitan Dist. Comm'n, Civ. No. 138,477 (Mass. Super. Ct., Norfolk County, filed Dec. 17, 1982); United States v. Metropolitan Dist. Comm'n, No. 83-1572 (D. Mass. filed June 3, 1983); Conservation Law Found. v. Metropolitan Dist. Comm'n, No. 83-1614 (D. Mass. filed June 7, 1983); Doneski, supra note 3, at 606. 39 MASS. GEN. LAWS ANN. ch. 92, § 1 (West 1969); Complaint, City of Quincy v. Metropolitan Dist. Comm'n, Civ. No. 138,477 (Mass. Super. Ct., Norfolk County, filed Dec. 17, 1982); Haar, supra note 4, at 643. Quincy also named the Boston Water and Sewer Commission (BWSC), which is in charge of operations at Moon Island. Doneski, supra note 3, at 563. The BWSC was prohibited from treating sewage at Moon Island absent permission from the MDC. Id. 40 United States v. Metropolitan Dist. Comm'n, No. 83-1572 (D. Mass. filed June 3, 1983); Conservation Law Found. v. Metropolitan Dist. Comm'n, No. 83-1614 (D. Mass. filed June 7, 1983); Doneski, supra note 3, at 606. 41 United States v. Metropolitan Dist. Comm'n, No. 83-1572 (D. Mass. filed June 3,1983). The National Pollutant Discharge Elimination System requires that all POTWs obtain an NPDES permit from EPA prior to the discharge of any pollutant into the waters of the United States. 33 U.S.C. § 1311(a) (1982); Doneski, supra note 3, at 585. 42 Conservation Law Found. v. Metropolitan Dist. Comm'n, No. 83-1614 (D. Mass. filed June 7, 1983); Doneski, supra note 3, at 606. 43 Conservation Law Found. v. Metropolitan Dist. Comm'n, No. 83-1614 (D. Mass. filed June 7, 1983); Doneski, supra note 3, at 606. 1995] BOSTON HARBOR 371

Quincy Bay.44 The complexity of the pollution issues moved the Mas­ sachusetts Superior Court to appoint a special master, Harvard Law School Professor Charles Haar, to resolve disputed factual issues.45 The factual findings of the special master led to an agreement be­ tween the parties that was aimed at rectifying the pollution problem.46 To monitor compliance with this agreement, the court appointed Pro­ fessor Haar to oversee the cleanup.47 However, thirteen months after the court-approved agreement was handed down there had been no real progress toward the alleviation of the pollution of Boston Har­ bor.4B As a result, in October 1984, Quincy and the MDC were back in COurt.49 This time, City of Quincy v. Metropolitan District Commission did not result in a traditional judgment.5o Armed with the power of the court, Massachusetts Superior Court Judge Paul G. Garrity threat­ ened to place the MDC in receivership and ordered a ban on most new sewer hookups to the MSS.51 This ruling was designed to force the Massachusetts Legislature to create a new authority to run the MSS.52 Judge Garrity's strong-arm tactics succeeded.53 Lawmakers reluctantly passed a bill in 1984 creating the MWRA.54 The MWRA was charged with the operations and maintenance of the MSS as well as bringing the system into compliance with federal

44 City of Quincy v. Metropolitan Dist. Comm'n, Civ. No. 138,477 (Mass. Super. Ct., Norfolk County, filed Dec. 17, 1982); Doneski, supra note 3, at 563. 4Ii Doneski, supra note 3, at 563. For a detailed account of the role of the special master in the City of Quincy v. Metropolitan District Commission litigation, see generally Timothy G. Little, Court-Appointed Special Masters in Complex Environmental Litigation: City of Quincy v. Metropolitan District Commission, 8 HARV. ENVTL. L. REV. 435 (1984). See also Report of the Special Master Regarding Findings of Fact and Proposed Remedies, City of Quincy v. Metro­ politan Dist. Comm'n, Civ. No. 138,477 (Mass. Super. Ct., Norfolk County, filed Dec. 17, 1982). 46 Doneski, supra note 3, at 563. 47 [d. at 564. 48 See id. at 565. 49 [d. 50 Boston Braces F()1' Harb()1' Clean-up; Bonding clout gives new agency power to fund clean-up effort, ENGINEERING NEWS-RECORD, Feb. 21, 1985, at 24 [hereinafter Boston Braces F()1' Harb()1' Clean-up]. 61 [d. 52 See id. The MDC was plagued with financial and operational problems that most agreed would bar it from effectively making the improvements to the MSS necessary to clean up Boston Harbor, thus necessitating the creation of a new authority to oversee the cleanup and operate the MSS. Doneski, supra note 3, at 609. For a more detailed discussion of the need for the creation of the MWRA, see Doneski, supra note 3, at 609-16. 63 Boston Braces F()1' Harb()1' Clean-up, supra note 50, at 24; Doneski, supra note 3, at 606. 64 1984 Mass. Acts 372, § 3(a); Boston Braces F()1' HarbQ1' Clean-up, supra note 50, at 24; Doneski, supra note 3, at 606. 372 ENVIRONMENTAL AFFAIRS [Vol. 22:365 and state environmentallaws.55 The MWRA took over from the MDC on July 1, 1985, and after two centuries of pollution, it appeared that Bostonians would finally begin cleaning up Boston Harbor.56 However, neither EPA nor the CLF demonstrated very much confidence that the creation of this new authority would result in an effective cleanup of Boston Harbor.57 On January 31, 1985, prior to the MWRA taking over the MSS, EPA filed suit in Federal District Court against the Commonwealth of Massachusetts, the MDC, and the MWRA seeking to obtain a court-monitored compliance schedule for the cleanup of Boston Harbor.58 On May 22, 1985, the CLF successfully petitioned the District Court to lift the stay on its previous action against the MDC and consolidate the case with EPA's suit.59 This consolidated action resulted in partial summary judgment against the MWRA as to its liability, and a court- monitored cleanup was ordered.60 The cleanup of Boston Harbor finally began in late 1985 and is still ongoing.61 Under the watchful eye of the United States District Court Judge in charge of monitoring the cleanup, Judge A. David Mazzone, the MWRA has proceeded with the renovation and modernization of the MSS.62 This process has included the construction of a plant to process sludge into fertilization pellets, the discontinuation of sludge dumping into the harbor, and the siting of a back-up landfill for excess processed sludge.63 The cleanup also calls for the construction of a new primary treatment plant and the addition of a secondary treatment facility on Deer Island.64 The Nut Island Treatment Plant is to be closed.65 A five and one-half mile tunnel under Boston Harbor is to be established to transport sewage from Nut Island to Deer Island.66 A nine and one-half mile outfall pipe that will carry the treated sewage out to sea is also slated for tunneling.67

55 1984 Mass. Acts 372, § 8(i), (n); Doneski, sU[Yra note 3, at 607. 56 See Boston Braces For Harbor Clean-up, sU[Yra note 50, at 24; Doneski, supra note 3, at 606. 57 See Boston Braces For Harbor Clean-up, supra note 50, at 24. 58 United States v. Metropolitan Dist. Comm'n, [1985] 23 Env't Rep. (BNA) 1350 (D. Mass. Jan. 31, 1985). 59 I d. at 1350. 60ld. 61 Hecht, sU[Yra note 7, at 32. 62 Judge Asked To Ap[Yrove Cut In Boston Harbor Spending, 14 AIR WATER POLLUTION REP., Apr. 8, 1991. 63 Hecht, sU[Yra note 7, at 32---34. 64 ld. 651d. 661d. 671d. 1995] BOSTON HARBOR 373

All of these improvements are centered on the modernization and repair of the MSS. The MSS is responsible for the disposal of all sewage from the forty-three communities surrounding Boston and is the major contributor to the pollution of Boston Harbor.68 Therefore, to understand the impact that these improvements will have on the condition of Boston Harbor, it is first necessary to have an under­ standing of the current condition of the MSS.

III. THE METROPOLITAN SEWERAGE SYSTEM While Boston Harbor's pollution problems are the end result of more than just the inadequacies of the MSS, the sewage discharged into the Harbor through the MSS is undoubtedly the major catalyst of the Harbor's problems.69 This section provides an overview of the wastes that the MSS has transported to the Harbor on a daily basis and the environmental devastation that has resulted from such dis­ posal.

A. Waste Disposal in Boston Harbor The MSS's primary method of disposal is through outfalls from its Deer Island and Nut Island treatment facilities. 70 Currently, wastes from over forty-three municipalities are conveyed through the MSS to either Deer Island or Nut Island for primary treatment.71 After receiving primary treatment, which ideally removes up to sixty-five percent of suspended solids from the sewage, the effluent is dis­ charged into Boston Harbor through outfalls.72 The effluent dis­ charged from the Deer Island and Nut Island plants can account for up to fifty percent of all water entering the Harbor on any given day.73 The remainder of the "fresh water" that enters Boston Harbor daily comes from the Charles, Mystic, Chelsea, and Neponset Rivers.74

68 Doneski, supra note 3, at 569. 69 See id. at 567. 7°Id. at 569. 71 Id. Deer Island receives wastes from twenty-two communities, including Boston, Cam­ bridge, and most municipalities to the north of Boston. Id. Nut Island services those communi­ ties to the south of Boston that are part of the MSS. Id. 72Id. at 570. Deer Island uses two outfalls, which discharge wastes approximately fifty feet below the surface in the President Roads shipping channel, and also has three back-up outfalls which are used when the incoming sewage exceeds the capacity of the two main outfalls. Id. Nut Island has two main outfalls and two back-up outfalls. Id. at 569. 73 Hecht, supra note 7, at 32. The four rivers feeding the Harbor send an average of eighteen cubic meters of water per second into it while the outfalls from Deer Island and Nut Island deliver approximately twenty cubic meters per second of effluent into the Harbor. Id. 74Id. 374 ENVIRONMENTAL AFFAIRS [Vol. 22:365

Unfortunately, these rivers are also polluted and just compound the pollution problem in the Harbor.75 Boston Harbor is some forty-seven square miles, and holds massive quantities of water at high tide.76 However, as the designers of the first sewage system found in 1876, it lacks the capability to flush itself out sufficiently with the tides.77 The Harbor is partially enclosed by islands and the coastline, and that, accompanied by the shallow depths of the Inner Harbor, results in only about seventeen percent of the Harbor's water being rejuvenated in anyone tidal cycle.78 As a result, a substantial amount of the effluent discharged into the Harbor, as well as the pollution carried to the Harbor by the incoming rivers, simply stagnates in the Harbor waters and/or settles to its floor.79 In addition to the daily effluent discharges, until December 1991, Boston would release approximately 400,000 to 500,000 gallons (50 to 70 dry tons) of sludge into the Harbor daily.so Sludge is composed of the greases and scum that have been skimmed off the top of the effluent and the heavier materials, including settleable solids and some suspended solids that settle to the bottom of the effluent.81 Duplicating the mistakes of the past, the MSS relied on discharging the sludge on the outgoing tide in the hope that it would reduce the amount of sludge in the Harbor.82 The discharge of the sludge resulted each day in a three-mile-long stream of sludge floating through Bos­ ton Harbor, dotted with grease balls and tampon applicators.83 In addition to creating a nuisance to boaters and a playground for seagulls, a substantial portion of this sludge waste would settle on the Harbor floor or wash up on neighboring beaches.84 In fact, at the outset of the cleanup, the discharge of sludge into Boston Harbor was considered the cleanup's most pressing problem.85

75 See id. 76 Doneski, supra note 3, at 559. 77 Hecht, supra note 7, at 32. 78 Id. 79 See id. so Boston Ends 40-Year Practice of Dumping Sludge into Harbor, supra note 21. 81 Allen, supra note 11, at 1; Doneski, supra note 3, at 580. 82 See Allen, supra note 11, at 1. 83 Id.; Doneski, supra note 3, at 580. 84 Allen, supra note 11, at 1; Doneski, supra note 3, at 580. 85 United States v. Metropolitan Dist. Comm'n, [1985],23 Envt Rep. (BNA) 1350 (D. Mass. Jan. 31, 1985) (''The Court finds that there is need for expedition to resolve the ongoing discharges of sludge ... into Boston Harbor ...."); see also John J. Kosowatz, Harbor Cleanup Builds Momentum, ENGINEERING NEWS-REC., Oct. 21, 1991, at 28 ("[The cessation of sludge discharges] is the most visible-and so far most critical--of the 21 court-ordered construction 1995] BOSTON HARBOR 375

Aggravating the pollution problems in Boston Harbor has been the inability of Boston's archaic sewer system to handle the increasing flow of wastes as Boston has grown.86 It is not unusual for the treat­ ment capacities at the Deer Island and Nut Island plants to be ex­ ceeded.87 When the maximum capacity of Deer Island, which is 600 million gallons of effluent a day (mgd), is exceeded, excess sewage is diverted to Moon Island which, lacking any treatment facilities, dis­ charges raw sewage immediately and directly into the Harbor.88 Simi­ larly, when the maximum 280 mgd capacity at Nut Island is exceeded, raw sewage is diverted directly to the outfall pipes, bypassing the treatment plant, where it is discharged into the Harbor along with the treated effluent.89 The ability of the Deer Island and Nut Island plants to treat the incoming sewage is exceeded most often as the direct result of either operational difficulties at the plants or the introduction of non-sewage waters into the system.90 At both plants, outdated equipment, the lack of replacement parts and preventive maintenance, and inadequate staffing cause numerous shutdowns each year that necessitate the use of the Moon Island outfall and the Nut Island bypasses.91 These prob­ lems are simply compounded by the infiltration/inflow (III) of extra­ neous liquids into the MSS.92 Groundwater infiltrates the MSS through defects in the pipes, joints, connections, and manhole walls while water from often illegally connected roof leaders, foundation and surface drains, streams, and catch basins accounts for inflow into the system.93 III alone frequently forces the volume of sewage in the system beyond the MSS's treatment capacity.94 Moreover, approximately fifty percent of the population serviced by the MSS has its waste removed by combined sewers.95 These com­ bined sewer systems, most built before 1910, collect human and in­ dustrial waste as well as storm water run-off.96 When the flow of

milestones imposed on the authority to bring it into compliance with secondary treatment standards required by the Federal Water Pollution Control Act."). 86 See Doneski, supra note 3, at 572. 87 [d. at 571. 88 [d. at 574-75. 89 [d. at 573-74. 90 [d. at 575. 91 See id. at 575-77. 92 [d. at 577. 93 [d. 94 [d. 95 [d. at 572. 96 [d. 376 ENVIRONMENTAL AFFAIRS [Vol. 22:365 wastes surpasses the carrying capacity of these systems' outdated pipes, the excess waste, the "overflow," is discharged directly into Boston Harbor, or the rivers feeding the Harbor, through overflow pipes.97 These combined sewer overflows (CSOs) are most prevalent during periods of wet weather when increased storm water entering the system drastically overburdens these systems' ability to trans­ port wastes.98 This overflow system provides no treatment and there­ fore dumps raw sewage directly into the waterways of Greater Bos­ ton.99 Prior to the commencement of the Harbor cleanup, these CSOs were responsible for up to seven billion gallons of untreated sewage being discharged into Boston Harbor each year. 1OO This form of pollu­ tion was the primary cause for most of the beach closings that plagued the Harbor's shores in the 1970s and 1980s.101

B. Feeling the Effects-The Polluted Harbor The constant use of Boston Harbor as a receptacle for all of the metropolitan area's waste, both treated and untreated, has resulted in the environmental devastation of the Harbor.102 The Inner Harbor, which is polluted primarily from CSOs and pollution fed into the Inner Harbor from the Charles and Mystic Rivers, has been plagued with high levels of nutrients which have resulted in decreased oxygen supply in the Inner Harbor.103 The depletion of oxygen in the water adversely affects marine life, often destroying certain forms oflife and harming others.104 Moreover, the overwhelming amount of untreated

97 [d. At the junction of community and interceptor sewers, regulating mechanisms allow excess combined sewage to overflow into a conduit which leads to the receiving waters. At the end of all conduits which empty into Boston Harbor are devices called tide gates. They are essentially flaps which open and allow for the release of sewage at low tide, while keeping out sea water at high tide. [d. at 573. 98 [d. However, even on a dry day up to fifteen million gallons of untreated sewage can be discharged into the Harbor through CSOs. [d. 99 [d.

100 [d. Boston's sewer pipes were so inadequate to handle the daily flow of wastes that the overflows that discharged directly into the Harbor were known to dump raw sewage into the Harbor daily, regardless of the weather. [d. 101 Dianne Dumanoski, MWRA to Review Plan to End Sewerage Overflow, BOSTON GLOBE, Sept. 19, 1990 (Metro/Region), at 26. 102 See Doneski, supra note 3, at 579. 103 [d. at 578--79. 104 [d. Fin rot disease was recorded in alarming rates in flounder that inhabit the Harbor. While the recent cleanup efforts have reduced the percentage of flounder afflicted with fin rot, it is still present in the Harbor population. Allen, supra note 11, at 1. 1995] BOSTON HARBOR 377 sewage that enters the Inner Harbor through CSOs, coupled with the Inner Harbor's minimal ability to take advantage of tidal flushing, has resulted in the accumulation of over nine feet of waste on the floor of the Inner Harbor.lo5 While pollutants discharged into the Outer Harbor are more likely to have been treated and become diluted more easily in the deeper waters of the Outer Harbor, their effect on the Outer Harbor has nonetheless been devastating.106 The Outer Harbor receives all the effluent and sludge discharged through the Deer Island and Nut Island outfalls.107 The most obvious effect of this waste disposal is the beach closings that result when the wastes wash toward the beaches of the Outer Harbor whenever the weather conditions so dictate.108 However, the influx of so many gallons of waste a day also has less apparent effects, including the altered aquatic environment surround­ ing the sewage outfalls.lo9 Pollution-tolerant species have replaced normal plant species and reduced the variety and quantity of commercially viable fish in the Harbor.uo There is also a buildup in the concentration of toxic wastes, such as polychlorinated biphenyls (PCBs), in the Outer Harbor.l11 This buildup of toxins detrimentally affects the fish population in Boston Harbor as well, causing certain populations to exhibit diseases asso­ ciated with exposure to toxins.u2 The pollution of the Outer Harbor also caused a substantial portion of the Harbor's shellfish beds to be closed to all useya While the discontinuance of further polluting of Boston Harbor cannot completely rectify the cumulative effect of more than a century of pollution, it can help the Harbor begin its own natural healing process.u4 By eliminating, where possible, the discharge of wastes into Boston Harbor and by providing more substantial treatment when discharges cannot be avoided, the MWRA can assist the natural proc­ esses that will really "clean up" the Harbor.u5 The problem has been

106 Doneski, supra note 3, at 579. 106 See id. at 580. 107 [d. at 578. 108 [d. at 581. 109 [d. at 580. 110 [d. 111 [d. 112 [d. Toxic substances resist breakdown and can accumulate in the tissue of species living in the polluted waters (bioaccumulation) causing diseases such as fin rot, which is prevalent in Boston Harbor fish. [d. 113 Doneski, supra note 3, at 581. 114 See Allen, supra note 11, at 1. 115 See id. 378 ENVIRONMENTAL AFFAIRS [Vol. 22:365 getting Massachusetts to do what is necessary to commence the clean­ up process. That is where the role of the court and Judge Mazzone have been so vital to the success of the cleanup.

IV. THE COURT CLEANS Up BOSTON HARBOR The environmental and economic consequences of the pollution of Boston Harbor clearly demanded rectification. Nevertheless, this en­ vironmental deterioration was not enough to move Massachusetts lawmakers to act. Therefore, the Harbor cleanup was not initiated without the pressure of the legal system. If Boston's politicians were blind to the extent of the problem and the size and cost of the cleanup, Judge A. David Mazzone quickly opened their eyes and got their attention. A witness to years of political lethargy, EPA and the CLF under­ stood that the creation of the MWRA, although a step in the right direction, could not guarantee the cleanup of Boston Harbor. United States v. Metropolitan District Commission was a clear statement of EPA's and the CLF's lack of confidence in the Massachusetts political machine.u6 The goal of this litigation was to force the MWRA to actively pursue the cleanup of Boston Harbor.l17 The result of this litigation was that and much more. United States District Court Judge A. David Mazzone, who pre­ sided over United States v. MDC and who has monitored the cleanup ever since, turned out to be the Harbor cleanup's greatest ally. In his opinion in United States v. MDC, Judge Mazzone made it clear that he would not hesitate to step in if the MWRA failed to "expeditiously" clean up Boston Harbor.us He reaffirmed his dedication to the cleanup of the Harbor three months later when he issued an interim order that established a schedule of steps the MWRA needed to take to commence the cleanup.u9 This interim order also required the MWRA

116 See United States v. Metropolitan Dist. Comm'n, [1985] 23 Env't Rep. (BNA) 1350 (D. Mass. Jan. 31, 1985). 117 [d. at 1350. 118 [d. If the MWRA acts expeditiously, it need not concern itself with interference from this Court. . .. At the same time, this Court was invited into this litigation only when voluntary efforts proved ineffective. The plaintiffs have proven a violation of a feder­ ally protected right, and this Court must protect that right if the entity entrusted by the state to do so should falter in its task. [d. 119 [d. 1995] BOSTON HARBOR 379

to file monthly compliance reports with the court updating it on the progress of the cleanup.12o Finally, the interim order established that "in the event of non-compliance or anticipated non-compliance, any party may petition this Court to compel compliance . . . ."121 Since then, Judge Mazzone has closely monitored the progress of the Boston Harbor Cleanup using "gun-to-the-head rulings" in order to make sure that the cleanup remains on track, if not on schedule.l22 The Boston Harbor Cleanup is the largest public works project ever undertaken in New England.l23 The complexity of the components and logistics of the cleanup can be overwhelming. However, by remaining focused on the major goals of the cleanup, Judge Mazzone has been able to monitor the project as a whole while also addressing the intricacies of various challenges against the smaller components of the cleanup. The overarching goal of cleaning up Boston Harbor, a clean harbor for the future, can be subdivided into three major goals. First is the complete cessation of all sludge discharges into Boston Har­ bor.l24 Next is improvement of the treatment of the effluent that will still be discharged into the Harbor and the halting of the dumping of this effluent so close to shore.l25 Third is the renovation of the com­ bined sewage systems to end overflows of raw sewage into the Har­ bor.126 Of course, none of these goals could be fulfilled without some difficulties. To varying degrees, each project has faced economic, po­ litical, and environmental challenges in the press, legislature, and in Judge Mazzone's courtroom. The following subsections will look at the components of each clean-up objective, the challenges to each objec­ tive, and how they have been resolved.

A. Sludge As the cleanup of Boston Harbor got under way, Boston was the only city in the entire world that removed sludge from its sewage only to dump that sludge into the harbor each day along with the effluent

120 [d. 121 [d. 122 David Nyhan, A Man with a $6 Billion Job: Clean the Harbor, BOSTON GLOBE, Apr. 13, 1989 (Op-Ed), at 17. 123 MacKerron, supra note 33, at 34. 124 See United States v. Metropolitan Dist. Comm'n, Civil Action Nos. 85-0489-MA, 83-1614- MA (D. Mass. Compliance Order 1, Dec. 23, 1985),23 Env't Rep. Cas. (BNA) 1350. 126 [d. 126 Sue Reinert, The Royal Flush, BOSTON Bus. J., Mar. 9, 1987, at 1. 380 ENVIRONMENTAL AFFAIRS [VoL 22:365 from which the sludge had just been removed.127 Therefore, it was imperative that Boston end all sludge dumping into the Harbor as soon as possible. The court-ordered cleanup required that Boston cease all dumping by 1991 and that both a primary and a back-up disposal system be established to handle the disposal of sludge.128 On December 26th, 1991, the MWRA announced the complete cessation of all sludge dumping, but it did not reach this end without difficulty.129 Concerns as to how the sludge was to be treated and where it would be disposed resulted in a number of challenges to this early compo­ nent of the Boston Harbor Cleanup.13o

1. How to Dispose of the Sludge The sludge disposal project faced immediate challenges as EPA and the MWRA battled over the best methods for primary and back-up disposaLl3l Initially, debates centered on which of three potential pri­ mary disposal methods would be implemented.132 The options were the incineration of the sludge or recycling, which could have been done in one of two ways.133 The first recycling method would squeeze the water from the sludge and blow it dry, thereby killing the bacteria in the sludge.l34 The residue could then be used as compost.135 The second recycling method would also squeeze out the water, but then it would bake the sludge and use the resulting sludge "pellets" as fertilizer.136 At first, EPA adamantly defended the position that incineration would be required, at least as a form of back-up disposaL 137 The MWRA, on the other hand, staunchly supported the implementation of a recycling program, maintaining that neither recycling program would require back-up disposal options.138 In the end, EPA opted to

127 Larry Tye, EPA Says Sludge Plan 'Not a Responsible Course', BOSTON GLOBE, Jan. 20, 1989 (Metro/Region), at 84 (quoting EPA attorney Jeff Fowley) ("We're the one city in the entire world whose treatment plants collect sludge and dump it back into the harbor the same day."). 128 MacKerron, supra note 33, at 34; Tye, supra note 127, at 84. 129 Boston Ends 40-Year Practice of Dumping Sludge into Harbor, supra note 21. 130 See infra notes 131-211 and accompanying text. 131 See Tye, supra note 127, at 84. 132 See id. 133 [d. 134 [d. 135 [d. 136 [d. 137 [d. 138 [d. 1995] BOSTON HARBOR 381 support recycling the sludge into fertilization pellets.139 Moreover, faced with the fact that incineration could potentially violate federal clean air laws because of the high levels of toxins found in the sludge, EPA dropped a plan for back-up incineration.140 Instead, a mandatory in-state, back-up landfill option was adopted.141 The final mandate for primary disposal of the sludge consisted of a plant that would recycle the sludge into fertilization pellets which would then be sold for certain agricultural purposes.142 The sludge is shipped in specially designed and covered barges across the Harbor from Deer Island to the recycling plant.143 The recycling plant then heats the sludge at over 700 degrees Fahrenheit (380 degrees Cel­ sius).144 This heating process kills the bacteria in the sludge and pro­ duces tiny, three-millimeter sludge pellets.145 These pellets are then sold as fertilizer. 146 While this approach to sludge disposal clearly surpassed the exist­ ing harbor dumping, it was not without its critics.147 Opponents noted the potential inadequacy of the fertilizer market to absorb these fertilization pellets, which would be competing with other sludge-to­ fertilizer plants that were already operating or soon to be operating.148 Opponents also questioned the existence of any real market for these pellets since their use was limited by the amount of toxins in the sludge.149 In fact, when the plant was first proposed, the fertilization pellets that it would be producing could not legally be used in Massa­ chusetts as agricultural fertilizer because cadmium levels in the sludge exceeded state health safety levels.l50

139 James Franklin, EPA OK's Plans For Sewerage Disposal, BOSTON GLOBE, Apr. 5, 1990 (MetrolRegion), at 1. 140 Donald Harleman, Cutting the Waste in Wastewater Cleanups, TECH. REV., Apr. 1990, at 60. 141 See Dianne Dumanoski, EPA 7b Ask Court 7b Order MWRA To Study Sites in Walpole, Revere, BOSTON GLOBE, June 22, 1990 (Metro/Region), at 42. 142 Hecht, supra note 7, at 33. 143 Boston Stops Ocean Dumping Of Sludge, 123 PUB. WORKS, Apr. 1992, at 96. 144 Hecht, supra note 7, at 33. 145 [d. 146 [d. 147 See Andrew Dabilis, State OK's 3 Disputed Sludge Sites, BOSTON GLOBE, Nov. 21, 1989 (Metro/Region), at 23. 148 [d. At the time, both New York and New Jersey were expected to have similar treatment facilities creating even more pellets than the Boston plant. [d. 149 [d. When the recycling plant was first proposed, no New England states would accept the pellets. [d. 150 Ross Gelbspan, State Will Ease Rules On Sludge, BOSTON GLOBE, May 8, 1991 (MetrolRe­ gion), at 33. 382 ENVIRONMENTAL AFFAIRS [Vol. 22:365

In response to the questions raised by the critics of the sludge-to­ fertilizer recycling plan, the concept of a back-up landfill was sug­ gested and adopted.l5l An in-state landfill would serve as a back-up disposal option for unsold pellets and would also be used as a dump for raw sludge in the event the fertilization plant was forced to halt operations for any prolonged period of time.152 The Commonwealth of Massachusetts also eventually reduced its standard for an acceptable amount of cadmium in the pellets so that they could be used as fertilizer in Massachusetts.153 This would allow Massachusetts to re­ quire that the municipalities serviced by the MSS absorb some of the unsold pellets as either fertilizer or fill.154

2. Siting Problems Once the methods of primary and back-up disposal of the sludge were determined, the most difficult portion of the project, the siting of the plant and the landfill, commenced. Both siting decisions re­ quired extensive studies of all available sites. Furthermore, once those studies were complete, the recommendations were met with vocal opposition from the communities at the top of the lists.155 How­ ever, of the two necessary sites, the site chosen for the recycling plant met with less resistance than the one chosen for the landfill and, in late 1991, the recycling plant, sited in Quincy, became operational.156 The site for the back-up landfill is still being disputed. a. The Sludge-to-Fertilizer Recycling Plant The site of the recycling plant was the first to be proposed.157 The MWRA and EPA conducted a three-year, $10 million search of three hundred potential sites for the sludge recycling plant, finally selecting

151 Hecht, supra note 7, at 33. 152 [d. 153 Gelbspan, supra note 150, at 33. Originally, pellets had to have levels of two milligrams or less of cadmium per kilogram of dry sludge to be acceptable for agricultural use in Massachu­ setts. The sludge coming from Deer Island has cadmium levels of approximately 8.9 milligrams per kilogram, which was still far below any federal safety level. [d. 154 [d. Governor Weld's first bill to transfer the land for the landfill site from the Department of Corrections to the MWRA required that the forty-three MSS cities absorb any treated sludge that could not be sold. [d. 155 See Franklin, supra note 139, at 1. 156 Boston Ends 40-Year Practice of Dumping Sludge in Harbor, supra note 21. 157 Larry Tye, 2 Plants Approved for Sludge in Quincy, BOSTON GLOBE, Feb. 2, 1989 (Metro/Region), at 23. 1995] BOSTON HARBOR 383 the vacant General Dynamics Shipyard in Quincy.l58 Predictably, the citizens of Quincy opposed the placement of the recycling plant at the Shipyard, citing concerns over the potential odor and health problems and the loss of up to ten thousand jobs that the Shipyard could support if reopened.159 However, the opposition never mounted much of a challenge and the Quincy site was quickly approved.l60 Construc­ tion of the recycling plant began soon thereafter, and the plant began recycling sludge in late 1991.161 However, it is likely that Quincy residents now wish they had mounted a more substantial challenge to this plant at the early stages. Ever since it began operating in 1991, the plant, known as the Fore River sludge-to-fertilizer plant, has been plagued with operational difficulties. l62 For example, the Fore River plant was shut down in August of 1992 after several fires brought the operational safety of the plant into serious question.l63 Judge Mazzone banned all sludge processing at the Fore River plant for a brief period of time while safety concerns were addressed, but even as the plant reopened, questions about the plant's performance were still being voiced.l64 Quincy officials complained that the plant was the cause of noise and odor problems that were being ignored by the MWRA and EPA so as not to delay the cleanup any more than necessary.l65 However, Quincy's concerns seemed to be overshadowed by the debate raging over the siting of the back-up landfill and have received little, if any, real attention since the plant renewed operations.166 b. The Back-up Sludge Landfill The siting of an in-state landfill that would receive any surplus sludge pellets, as well as other grit and debris that is screened out of the MSS, was a political land mine from day one. 167 After reviewing

168 [d. 169 [d. 160 See id. The Shipyard was initially approved as a temporary recycling site, but most citizens understood that this would lead to the permanent plant being sited there. Dabilis, supra note 147, at 23. 161 Tye, supra note 157, at 23. 162 Roy Gutterman, Fore River Sludge Plant Closed; Fires Lead MWRA Officials to Shut Down Facility Until It's Deemed Safe, BOSTON GLOBE, Aug. 7, 1992 (Metro/Region), at 17. 163 [d. 164 Roy Gutterman, Ban Modified; Sludge 7b Be Stored at Fore River, BOSTON GLOBE, Aug. 11, 1992 (Metro/Region), at 26. 166 [d. 166 See Dabilis, supra note 147, at 23. 167 See Dumanoski, supra note 141, at 42. 384 ENVIRONMENTAL AFFAIRS [Vol. 22:365 over three hundred sites, the MWRA proposed to site the landfill in either Walpole or Revere.l68 The Walpole site, which represented the MWRA's first choice for the landfill, was a ninety-five acre parcel of state land next to the state's maximum security prison, Cedar Junc­ tion. 169 The Revere site, the MWRA's second choice, was the privately owned, fifty-four acre Rowe's Quarry.170 The Walpole site was preferred by the MWRA over Rowe's Quarry for a number of reasons.171 The Walpole site was already owned by the Commonwealth of Massachusetts and title need only be transferred from the Massachusetts Department of Corrections to the MWRA.l72 In contrast, Rowe's Quarry was still an operating quarry, and the owner of the land made it clear that the only way the state would get possession of the site was through eminent domain proceedings.173 Rowe's Quarry was also in a more densely populated area, and, fur­ thermore, it would have required nearly ten thousand truckloads of fill that would be unnecessary at the Walpole site.174 The minute it became clear that the MWRA wanted the Walpole site, Walpole residents challenged the decision. 175 In spite of thorough environmental studies by the MWRA and EPA that found the Walpole site most suitable for the landfill, Walpole residents claimed that cracks in the bedrock would cause the contamination of the aquifer that provided Walpole's drinking water.176 Walpole residents also opposed being forced to carry the excessive burden of both the state's maximum security prison and the new landfill, suggesting that the odors from the landfill had the potential to incite riots at the state prison next door.177 This was despite the fact that forty-six acres of the site would be used as a buffer between Cedar Junction and the landfill. 178

168 [d. 169 [d. 170 [d. 171 See id. 172 Dumanoski, supra note 141, at 42. 173 [d. 174 [d. 175 See Dahilis, supra note 147, at 23. 176 James Franklin, Environmental Groups Rap Sludge Site, BOSTON GLOBE, Oct. 23, 1990 (Metro/Region), at 16. 177 [d.; Boston Harbor Cleanup Woes Put Walpole, Mass. in Wringer, 18 SLUDGE, Mar. 2,1993, at 1, 3. 178 Dumanoski, supra note 141, at 42. 1995] BOSTON HARBOR 385

Walpole's opposition became extremely vocal and the residents threatened to sue the MWRA and EPA over the siting decision.179 Walpole did in fact sue, first challenging EPA's supplemental environ­ mental impact statement (SElS) and then the United States Army Corps of Engineers's permit for the site.180 Both actions were in front of Judge Mazzone and both resulted in summary judgment for the defendants.181 Each of these challenges focused on alleged procedural violations of NEPA, and in Walpole v. Reilly, Judge Mazzone made clear his view of these "form over substance" challenges to the Boston Harbor Cleanup: ''While the Towns have focused on the trees and discovered a few diseased branches, my review of their objections convinces me of the essential soundness of the trees as well as the forest."l82 Undaunted by their failures in the court, the opponents took their protests to the street. The more vocal they became, the more atten­ tion the state legislature gave to the situation, and eventually the Walpole residents began to gain the support of vote-needy repre­ sentatives.l83 The support of politicians was most important, because in order to go forward with the site, the state legislature needed to transfer ownership of the land from the Department of Corrections to the MWRA.l84 Walpole defeated the MWRA in the public relations war and made the issue a political quagmire.l85 As a result, in June of 1990, the Massachusetts State House of Representatives voted to delay the decision on whether to transfer the land to the MWRA for six months.l86 The political logjam that had caused the Harbor pollu­ tion in the first place was now affecting the cleanup even at its earliest stages. The cleanup faced its first showdown between Judge Mazzone and state lawmakers. EPA, disgruntled with the legislature's refusal to act on the trans­ fer of the site, asked Judge Mazzone to order the transfer and publicly chastised the legislature.187 Then regional administrator of EPA, Julie

179 See id. 180 Towns of Norfolk & Walpole v. United States Army Corps of Eng'rs, 772 F. Supp. 680, 682 (D. Mass. 1991); Walpole v. Reilly, 761 F. Supp. 867, 872 (D. Mass. 1991). 181 Norfolk & Walpole, 772 F. Supp. at 692; Reilly, 761 F. Supp. at 894. 182 Reilly, 761 F. Supp. at 894. 183 See Franklin, supra note 176, at 16. 184 [d. 185 See id. 186 Frank Phillips, House Vote Delays Decision About Site For MWRA Landfill, BOSTON GLOBE, June 21, 1990 (MetrolRegion), at 25. 187 See Prodding the Harbor Project, BOSTON GLOBE, July 5, 1990 (Ed.), at 10. 386 ENVIRONMENTAL AFFAIRS [Vol. 22:365

Belega, went so far as to note that the legislature "would like the judges to make decisions they don't want to make."188 However, Judge Mazzone did not order the transfer of the land.189 Instead, he threat­ ened the legislature with punitive actions, including fines at one ex­ treme and taking over control of the cleanup from the MWRA at the other, if they did not approve the transfer by December 5, 1990.190 Although faced with the potential of court intervention, the Massa­ chusetts Legislature still refused to approve the transfer, and after missing the December 5,1990 deadline, adjourned for the holidays.l9l On December 7, 1990, EPA again requested that Judge Mazzone order the transfer.192 Using the successful tactics of Judge Garrity, who had forced the creation of the MWRA by banning new sewer hookups to the MSS, Judge Mazzone ordered a moratorium on almost all new sewer hookups to the MSS that would exceed 2,000 gallons per day.193 The moratorium was designed to pressure the legislature to approve the Walpole site, but Judge Mazzone also recommended that the MWRA conduct a search for alternative sites.194 The goal of the moratorium was met when, on May 20, 1991, Governor William Weld signed a bill into law that authorized the transfer.195 However, it was only passed by the legislature after the three-month morato­ rium on new sewer hookups delayed 7,222 residential projects and over 17,000 commercial and industrial projects in the cities serviced by the MSS.196 While the MWRA commenced design work and tests at the Walpole site, in an attempt to get back on schedule after the costly delay, opponents continued to challenge the acceptability of the site.197 Gov­ ernor Weld appointed a special committee to search for alternative sites, even though the Walpole site had been chosen after almost three hundred in-state sites had been rejected.198 Although the clean-up

188 [d. 189 [d. 190 Tough Words in Harbor Cleanup, ENGINEERING NEWS-RECORD, July 12, 1990, at 12. 191 James Franklin, EPA Asks Court For Landfill in Walpole, BOSTON GLOBE, Dec. 7, 1990 (Metro/Region), at 33. 192 [d.

193 See United States v. Metropolitan Dist. Comm'n, 757 F. Supp. 121, 129-30 (D. Mass. 1991); James Franklin, Judge Halts Sewer Hookups; Pushes State on Harbor Landfill, BOSTON GLOBE, Feb. 26, 1991 (Nat'l/Foreign), at 1. 194 See United States v. Metropolitan Dist. Comm'n, 757 F. Supp. at 129-30. 190 Judge Ends Boston Sewer Ban With Transfer of Landfill Site, 16 SLUDGE, June 5, 1991, at 1,3. 196 [d. The moratorium ran from February 25, 1991 to May 20, 1991. [d. 197 [d. 198 [d.; Dumanoski, supra note 167, at 42. 1995] BOSTON HARBOR 387 order required that the landfill be in-state, that did not stop opponents from trying to force an out-of-state site on the MWRA.199 Massachu­ setts Representative Barney Frank went so far as to attach a rider to a federal EPA appropriations bill that was designed to bar any agency, especially EPA, from prohibiting the MWRA from shipping the sludge out of state.200 Representative Frank's actions drew strong criticism from the CLF and EPA, as well as members of the Senate Appropriations Subcommittee, and the rider was eventually deleted from the appropriations bill.201 However, the continued political oppo­ sition to the Walpole site convinced the MWRA's board of directors to reopen the search for other, more acceptable sites, including out­ of-state sites, even though the clean-up order mandated an in-state facility.202 Bowing slightly to political pressure, EPA noted that it would not object to the sale of sludge out-of-state, but refused to waive the necessity of an in-state, back-up landfill.203 On June 11, 1993, the Massachusetts Department of Environmental Protection gave final approval of the Walpole site, noting that, consis­ tent with the findings of EPA and the United States Army Corps of Engineers, the site posed no environmental concerns to the surround­ ing communities.204 This was followed by a July order by Judge Maz­ zone requiring the MWRA to move forward with the Walpole site and accept bids for its construction.205 But just as it appeared that the six-year battle over the siting of the landfill was about to end, the MWRA's board of directors approved a proposal that would send any excess sludge two thousand miles away to Utah instead of to Walpole.206 The Utah alternative would require that the MWRA sign a thirty­ year contract for a landfill that could handle over fourteen times more

199 Ross Gelbspan, Frank's Legislation on Cleanup Decried, BOSTON GLOBE, June 6, 1991 (Metro/Region), at 31. 200 [d. 201 See Ross Gelbspan, Bid To Block Landfill Appears Dead; Congress Slow to Back Frank's Plan to Stop Walpole Project, BOSTON GLOBE, Aug. 14, 1991 (MetrolRegion), at 21. In a letter to Senate Appropriations Subcommittee Chairwoman Barbara Mikulski (D-Md.), Senator John Chafee (R-R.I.) "blasted Frank's amendment as a 'highly unusual and inappropriate intrusion' into an ongoing enforcement case." [d. 202 David Chandler, MWRA to Seek Alternative to Walpole Sludge Dump, BOSTON GLOBE, Nov. 21, 1991 (MetrolRegion), at 33. 203 Boston Harbor: Out-OJ-State Dump Site Sought, Greenwire (Clean Water), Apr. 3, 1992. 204 Massachusetts DEP Approves Sludge Landfill; Doubts Remain As Th Site's Suitability, 18 SLUDGE, June 22, 1993, at 1, 3. 205 Sludge Saga Continues, 18 SLUDGE, July 20, 1993, at 1, 3. 206 MWRA Drops Walpole Sludge Landfill, Attempts to End Years oj Controversy, 18 SLUDGE, Sept. 14, 1993, at 1,3. 388 ENVIRONMENTAL AFFAIRS [Vol. 22:365 sludge than the proposed Walpole site.207 MWRA officials also claimed that the Utah site would be the less expensive of the two sites, thus saving MWRA ratepayers money.208 The Utah site still requires EPA and court approval.209 EPA, however, is leaning toward acceptance of the Utah site, and since it has been EPA that has been most adamant about an in-state site, the court is not likely to refuse the site if EPA accepts it.210 If Quincy's opposition to the recycling plant is an example of a failed NIMBY challenge, Walpole's efforts to keep the back-up landfill out of their backyard could be considered the "how to" of NIMBY ac­ tions.2l1 Walpole was able to arouse a fervor that veiled the eyes of politicians and citizens to the legitimacy of the numerous studies that found the Walpole site to be safe and efficient. As a result, those opposed to the Walpole site were able to effectively defeat the goals of the cleanup by causing additional delays and expenditures so that the landfill would not be in their backyard. Despite Judge Mazzone's efforts to keep the siting process on schedule and to compel the Commonwealth to accept the Walpole site, not even a court-run cleanup can avoid the political impetus of a NIMBY attack. However, Judge Mazzone's pressure on the Massachusetts Legislature forced lawmakers to act in order to find an acceptable site rather than allowing them to kill the site through inaction, thus avoiding the tough choices involved in the Boston Harbor Cleanup.

B. Effiuent The 1972 amendments to the Federal Water Pollution Control Act mandated that all POTWs apply secondary treatment to all sewage that was to be discharged into the waters of the United States.212 However, even if the MDC had taken immediate steps in the 1970s to implement secondary treatment, that would not have solved the Har­ bor's pollution problems. The inadequacies of the existing primary treatment plants on Deer Island and Nut Island were too extensive to be solved by simply adding secondary treatment.213 The MWRA

207 Id. 208 Id. 209 See Interstate Waste: EPA Favors Sending MA Sludge 7b Utah, Greenwire (Wastes and Hazardous Substances), Sept. 9, 1993. 210 See id. 211 "NIMBY" refers to the "Not In My Back Yard" phenomenon where local citizens oppose proposed projects or siting decisions in their own community. 212 33 U.S.C. § 1311(b)(1)(B) (1976). 213 See Doneski, supra note 3, at 575-76. 1995] BOSTON HARBOR 389 recognized this, and one of the most essential components of the clean-up project became the construction of new, modern primary and secondary treatment facilities.214 In addition to new primary and sec­ ondary treatment facilities, the cleanup also called for the tunneling of a nine and one-half mile outfall pipe that would carry the treated effluent much further out into Boston Harbor.215 While everyone agreed that improved treatment of the effluent was essential to the cleanup of Boston Harbor, differences in what form those improvements should take resulted in a number of challenges to the cleanup project.216 Most challenges centered either on the mag­ nitude and location of the new primary treatment plant, the necessity and effectiveness of secondary treatment, or the environmental im­ pact of the new outfall.217 This subsection will explore each of these components and the challenges thereto.

1. How Much Treatment is Enough? Despite the need for improved primary treatment, the means by which the MWRA proposed to make these improvements was not accepted by everyone.218 Furthermore, even though the Clean Water Act required secondary treatment, some environmentalists and sci­ entists questioned the efficiency and viability of secondary treat­ ment.219 These questions are still being debated as the cleanup pro­ gresses and may still affect the amount of treatment the effluent will finally receivepo So, how much treatment is enough? a. Primary Treatment When the new primary treatment facility is completed it will be the largest primary treatment facility in the United States.221 All effluent treatment, both primary and secondary, is to be consolidated on Deer Island, necessitating a plant that can handle a capacity of up to 4.9 million cubic meters of sewage a day.222 The plant will receive an average of 300 mgd from the northern portion of the MSS, from which

214 Hecht, supra note 7, at 34. 215 Boston May Tunnel Recard Outfall, ENGINEERING NEWS-RECORD, Nov. 5, 1987, at 5. 216 See Hecht, supra note 7, at 33. 217 See id. 218 See id. 219 See Dianne Dumanoski, Harbar Effort May Fall Short; Report Says Sewerage May Re- quire Added Treatment, BOSTON GLOBE, Apr. 17, 1993 (Metro/Region), at 15. 220 See id. 221 Hecht, supra note 7, at 33. 222 [d. 390 ENVIRONMENTAL AFFAIRS [Vol. 22:365 it has always received sewage.223 It will also receive approximately 160 mgd from the southern portion of the system which has histori­ cally been treated at Nut Island.224 The Nut Island plant will cease to treat and discharge effluent into the Harbor and will be converted to a headworks for the Deer Island plant.225 The sewage will be pumped from Nut Island through a five and one-half mile tunnel under the Harbor to the new treatment facilities at Deer Island.226 The new plant will treat sewage in the same manner as the existing treatment plants at Deer Island and Nut Island, but will not be plagued by the operational problems that these plants faced. 227 Im­ provements in the plant's operations will effectively eliminate raw sewage discharges through Moon Island and the bypasses at Nut Island.228 The new Deer Island treatment plant will utilize traditional settling tanks to separate the sludge from the effluent.229 To maximize the use of space at Deer Island, these tanks are being constructed in pairs, one on top of the other.230 This process is designed to remove an average of sixty percent of the solids as well as close to forty percent of the toxic substances in the sewage.231 When the secondary treat­ ment plant is completed, the effluent will proceed to secondary treat­ ment prior to being discharged into the Harbor.232 Until the plant is completed, the effluent will be discharged directly into the Harbor, initially through the existing outfalls and eventually through the new nine and one-half mile outfall that is tentatively scheduled for com­ pletion in 1999.233 The main concern regarding the new treatment plant has been the scale of the project.234 The capacity of most treatment plants is based on the size of the population that the sewer system services.235 In the case of the Deer Island facility, the treatment plant has been designed to handle a capacity of almost three times that which is dictated by

223 Kosowatz, supra note 85, at 28. 224 [d. 225 [d. 226 [d. 227 See Hecht, supra note 7, at 35. 228 See id. 229 [d. 230 [d. 231 [d.

232 See Hecht, supra note 7, at 35. 233 See id. 234 See id. at 33. 235 [d. "Sewer engineers usually allow for about 0.4 cubic meters of waste from each resident." Id. 1995] BOSTON HARBOR 391 the size of Boston's population alone.236 This is necessary because of the inadequacies of the sewer system itself.237 The storm run-off that inundates the system, and ground water that seeps into the system, require that the plant have such an enormous capacity threshold.238 Opponents, referring to the Deer Island plant as "old-time giant scale engineering," argued that there was a better alternative to the massive Deer Island treatment plant.239 Instead of constructing a plant that was forced to handle three times the capacity of a normal plant, opponents argued that a more effective plan would be to pre­ vent the storm run-off and seepage from entering the MSS.240 Accord­ ing to opponents, by reducing the amount of non-sewage liquids that enter the MSS, smaller regional treatment plants could have been possible.241 This would, of course, alleviate the potentially disastrous effects of an extended operational shutdown of the Deer Island facil­ ity. However, the potential costs of renovating or rebuilding flawed portions of the MSS were eventually deemed too excessive and con­ struction of the Deer Island primary treatment plant began.242 When the primary treatment plant goes on line in late 1994 or 1995, the majority of the secondary treatment plant's construction will com­ mence.243 b. Secondary Treatment The proposed secondary treatment facilities at Deer Island would remove even more of the solids and toxins that are still present in the effluent after primary treatment.244 After primary treatment, the effluent is transferred to aeration tanks.245 The effluent remains in these aeration tanks for approximately two hours while oxygen is added to it.246 The oxygen is used to increase the growth of microor-

236 See Hecht, supra note 7, at 33. 237 See id. 238 [d. 239 [d. at 34. 240 See id. 241 Hecht, supra note 7, at 34. 242 See id. 243 [d. Portions of the secondary treatment plant are to be built on the site of the current primary treatment plant. Therefore, full-scale construction of the secondary treatment plant cannot be commenced until the new primary treatment plant begins operations and the current plant can be demolished. [d. 244 [d. at 35. 246 Hecht, supra note 7, at 35. 246 [d. 392 ENVIRONMENTAL AFFAIRS [Vol. 22:365 ganisms that assist in the breakdown of the wastes.247 The effluent is then sent to another set of sedimentation tanks, like those used in the primary treatment process, where more solids and bacteria settle out of the effluent into sludge.248 The combined effect of both primary and secondary treatment is the removal of approximately ninety percent of the solids and fifty to eighty-five percent of the toxic components of the original sewage.249 The debate over the necessity of secondary treatment of effluent discharged into Boston Harbor has been at the heart of the clean-up dilemma from the very start.250 'I\venty-two years after the Clean Water Act of 1972 required all POTWs to provide their effluent with secondary treatment, the MWRA continues to discharge effluent that has only received primary treatment into Boston Harbor daily.251 With serious construction on secondary treatment facilities not scheduled to begin until 1995, it is clear that effluent being discharged into Boston Harbor will not begin to receive secondary treatment until sometime after the turn of the century.252 Despite the requirements of the Clean Water Act, and the fact that secondary treatment helps remove a substantially increased percentage of the solids and toxins in the effluent, opponents to secondary treatment have challenged this component of the project.253 Some challenge the project on eco­ nomic grounds, others on environmental grounds.254 The economic challenge to secondary treatment began when then Governor Michael Dukakis claimed that the Harbor could be cleaned up at less expense without secondary treatment.255 Opponents of the cost of secondary treatment claim that the same results could be met without the expense involved by further enhancing the primary treat­ ment process.256 Most recently, a report by the National Academy of Sciences concluded that a chemically-enhanced primary treatment method is "nearly equivalent to the EPA performance standard for secondary treatment."257 However, since federal law mandates the application of secondary treatment, and Boston Harbor has been re-

247 [d. 248 [d. 249 [d. 250 See supra notes 22-38 and accompanying text. 251 See Hecht, supra note 7, at 33. 252 See id. 253 See Dumanoski, supra note 219, at 15; MacKerron, supra note 33, at 34. 254 See Dumanoski, supra note 219, at 15; MacKerron, supra note 33, at 34. 255 See MacKerron, supra note 33, at 34. 256 [d. 257 Dumanoski, supra note 219, at 15. 1995] BOSTON HARBOR 393 fused a waiver, these economic arguments have fallen mostly on deaf ears.258 Therefore, absent a decision by Congress to eliminate the secondary treatment requirement from the Clean Water Act, it is unlikely that Boston Harbor will receive less than secondary treat­ ment.259 Going even further, some environmentalists are asking whether or not the sewage should receive more than secondary treatment.260 While secondary treatment reduces the amount of solids and toxins in the effluent, it does not remove very much of the nitrogen that is present in the waste.261 Excessive amounts of nitrogen in the waters of Boston Harbor could have a number of detrimental effects on the environment, including an increase in the likelihood of red tides and the eutrophication of the waters in Boston Harbor.262 As a result, some environmentalists are calling for a form of tertiary treatment that would combat these potential problems.263 One of the effects of excessive nitrogen in marine waters is eutro­ phication.264 The nitrogen stimulates the growth of marine plants and algae.265 When this growth is overstimulated by the nitrogen, the overabundance of algae and plants can deplete the ocean of the oxy­ gen necessary to support other forms of marine life. 266 The depletion of oxygen occurs when dead algae and marine plants decay.267 This results in "a putrid green or brown broth devoid of oxygen-consuming animals."268 Currently, the discharge of sewage into Boston Harbor does increase the growth of algae.269 However, since the discharges are in relatively shallow waters, the tides are able to sustain an equilibrium in the waters surrounding the existing outfall pipes and eutrophication has not been a substantial problem.270 Of course, since the effluent currently discharged into the Harbor only receives pri­ mary treatment, the concentration of nitrogen in the effluent is not

258 See id. 259 See id. 260 See id. 261 [d. 262 Hecht, supra note 7, at 36. 263 See id. 264 [d. 265 [d. 266 [d. 267 Hecht, supra note 7, at 36. 268 [d. 269 [d. 270 See id. 394 ENVIRONMENTAL AFFAIRS [Vol. 22:365 as great as it will be once sewage has received secondary treatment as well. 271 The other concern stemming from the increase of nitrogen in the waters of Boston Harbor is the possibility that it might result in an increase in the occurrence of toxic red tides along the Massachusetts coastline.272 According to experts, the increased nitrogen might in­ crease the growth of toxic algae, which are then eaten by shellfish in the contaminated waters.273 These shellfish thus become poisonous to humans, and the consumption of these contaminated shellfish can result in paralytic poisoning.274 As a result, any potential increase in the occurrence of red tides carries with it substantial risk to both human health and the shellfish industry.275 Therefore, based on these potential risks, some experts have called for the implementation of tertiary treatment for Boston Harbor.276 Tertiary treatment would be used to remove the nitrogen and other nutrients that are not removed during the primary and secondary treatment processes.277 Currently, however, processes that could be implemented to remove nitrogen from the effluent are still in the experimental stage.278 This lack of viable technology, coupled with the uncertainty of the effects of more nitrogen entering the Harbor, have inhibited efforts to have tertiary treatment added to the clean-up process of Boston Harbor.279 Hence, there are no plans to add tertiary treatment to the clean-up plan.280 So the answer as to how much treatment is enough remains con­ tested. Some believe that enhanced primary treatment is enough, while others support additional tertiary treatment.281 However, the law requires secondary treatment, no less and no more, and that has

271 See Dumanoski, supra note 219, at 15. 272Id.

273 Hecht, supra note 7, at 36. "Red tide is a bloom of plankton that at times can actually turn sea water red. The plankton produce a toxin that accumulates in marine animals that eat large quantities of plankton, especially filter feeders such as clams and mussels." James Franklin, Red Tide On Georges Bank Raises Fears, BOSTON GLOBE, Apr. 21, 1991 (Nat'lIForeign), at 29. 274 Hecht, supra note 7, at 36. "The red-tide toxin ... causes tingling, numbness, paralysis of the extremities and, in extreme cases, respiratory failure." Franklin, supra note 273, at 29. 275 See Franklin, supra note 273, at 29. 276 See Dumanoski, supra note 219, at 15. According to Robert Howarth, a Cornell University ecologist, "[t]here are cases where secondary treatment may be nowhere near enough. Boston Harbor would be a good example of that." Id. 277 Hecht, supra note 7, at 36. 278Id. 279 See id. 28°Id. 28! See supra notes 215-54 and accompanying text. 1995] BOSTON HARBOR 395 been the deciding factor in the debate over how much treatment is enough.282 Congress mandated secondary treatment in the Clean Water Act, and regardless of whether or not secondary treatment is the most effective or cost efficient, the court and Judge Mazzone will require that Boston Harbor receive secondary treatment.283

2. Where to Discharge the Effluent? Many of the concerns about how much treatment the effluent would receive stemmed from initial concerns over where the effluent was to be discharged into Boston Harbor.284 The court-ordered cleanup calls for a new outfall pipe that will discharge the effluent nine and one-half miles out into Boston Harbor.285 While this is extremely advantageous to the quality of the water in the Inner Harbor, concerns have been raised over what effects this outfall might have on the waters sur­ rounding the discharge area and extending into Massachusetts Bay.286 The new outfall pipe will originate approximately 430 feet directly below Deer Island and extend nine and one-half miles out into Boston Harbor.287 It will be approximately twenty-four feet in diameter and, upon completion, it will be the longest, non-vehicular tunnel in the United States.288 At the end of the tunnel, fifty-five "riser pipes" will bridge the gap between the tunnel and the sea floor.289 These riser pipes will extend along the last 6,600 feet of the outfall tunnel and diffuse the discharge of effluent into the Harbor.290 Each riser pipe will be fitted with a special cap from which eight smaller pipes will extend

282 See Dumanoski, supra note 219, at 15. "Keough said the EPA thinks it is important to maintain secondary treatment as a minimum requirement. He added that it is still the law and 'I don't think Congress is going to be amenable to any change in the secondary requirement.'" Id. 283 See id. 284 See infra notes 294-329 and accompanying text. 285 Ronald Rosenberg, For Harbor Tunnel Drillers, It's Down and Out; It's Also Rock Around The Clock, As They Race To Finish 9.5 Mile Sewage Conduit Under Sea Floor, BOSTON GLOBE, Mar. 25, 1991 (Sci. & Tech.), at 29. 286 See Jeff McLaughlin, Scientists Fear Sewage Outfall's Effects On Bays, BOSTON GLOBE, June 9, 1991 (Metro/Region), at 54. 287 Rosenberg, supra note 285, at 29. The tunnel is being dug by a 300-foot-Iong boring machine designed to cut its way through an average of 100 feet a day of bedrock approximately 250 feet below the ocean floor. Id. When the tunnel is complete, "most of the boring machine, its useful life over, will be encased in concrete and abandoned" at the end of the outfall. Id. 288 Id. That is almost the same diameter as the Callahan Tunnel, which carries two lanes of traffic linking Boston to Logan Airport on the other side of the Harbor. Id. 289 Rosenberg, supra note 285, at 29. 290 I d. "The risers will be sealed until the tunnel is ready to use; then a remote-controlled robot and diver will open the nozzles." Id. 396 ENVIRONMENTAL AFFAIRS [Vol. 22:365 four to eight feet in order to further diffuse the effluent as it is discharged into the ocean.291 When completed, tentatively by 1995, this outfall pipe will carry approximately 500 mgd of effluent into the Harbor and will have an emergency capacity of up to 1.2 billion gallons per day.292 Such a substantial volume of effluent being discharged into Boston Harbor on a daily basis has raised considerable concerns over its potential effects on Massachusetts Bay and Stellwagen Bank to the south.293 a. Effects on Massachusetts Bay Initial opposition to the outfall came from South Shore and Cape Cod residents.294 These opponents raised concerns as to whether Bos­ ton was simply shifting its pollution problem onto Massachusetts Bay by discharging the effluent into the outer currents of the Harbor, which would carry Boston's wastes to the south.295 Their challenge to the outfall centered on the belief that the effluent, carried south by the currents, would foul South Shore and Cape Cod waters and beaches.296 Opponents further claimed that the red tide and eutrophi­ cation issues surrounding the treatment of the effluent would also affect the waters of Massachusetts Bay as excess nutrients were carried through it by the currents.297 EPA and the MWRA studied the effects of the outfall in 1988 and again in 1992, the latter because of pressure from opponents to the outfall.298 In both cases, the studies found that the outfall would have only minimal, if any, effects on Massachusetts Bay.299 Officials claim that the sewage which has been discharged into Boston Harbor has always been carried by the cur­ rents into Massachusetts Bay after having been flushed out of the

291 Id. "To reduce the risk that ships or fishing trawlers will snag their anchors or nets on the diffuser caps, all the parts are rounded. The hard plastic cap domes were designed to withstand the force of an anchor." Id. 292 Jeff McLaughlin, Cape Fights Plan Th Pipe Effluent Into Mass. Bay, BOSTON GLOBE, Aug. 18, 1991 (Metro/Region), at 39. 293 See McLaughlin, supra note 286, at 54; McLaughlin, supra note 292, at 39. 294 McLaughlin, supra note 292, at 39. 295 Franklin, supra note 273, at 29. Sheila Lynch, president of Save the Harbor-Save the Bay, an environmental advocacy group opposed to the outfall, stated that "[t]unnels do not solve pollution problems. They only divert pollution problems. We should not clean up Boston Harbor only to find our grandchildren will have to clean up Massachusetts Bay ... in the 21st century." Id. See also McLaughlin, supra note 292 at 39. 296 McLaughlin, supra note 292, at 39. 291 See id. 298 See Ross Gelbspan, Outfall Pipe Needs No r&d Look, BOSTON GLOBE, May 28, 1992 (Metro/Region), at 24. 299 Id. 1995] BOSTON HARBOR 397

Harbor by the tides.3°O They also maintain that the quality of the waters in Massachusetts Bay may even improve when the new outfall begins operations.301 Since the effluent that will be discharged through the new outfall will be receiving more effective and substantial treat­ ment than that which has been discharged closer to shore in the past, and will also be diluted much more quickly in the deeper waters, pollution levels in Massachusetts Bay may thus even decrease slightly.302 Therefore, for the most part, opposition on the grounds that the outfall will adversely affect Massachusetts Bay has not substan­ tially threatened the cleanup of Boston Harbor.303 Environmentalists, however, have also questioned what effects the outfall might have on Stellwagen Bank, a feeding ground for a number of endangered species, and these concerns proved to be more substan­ tial, eventually finding their way into court in Bays' Legal Fund v. Browner.304

b. Effects on Stellwagen Bank Stellwagen Bank is located approximately sixteen miles southeast of the proposed end of the outfall pipe.305 On June 26,1993, Stellwagen Bank was dedicated by the National Oceanic and Atmospheric Ad­ ministration as a national marine sanctuary, one of only twelve in the nation and the only one in New England.306 This was in part due to Stellwagen Bank's importance as a migratory feeding ground for a number of endangered species.307 These endangered species include the Humpback, Fin, Sei, and Blue Whales, and the Kemp's Ridley, Leatherback, and Hawksbill Turtles.308 However, the most threatened

300 Dianne Dumanoski, Foes of MWRA Outfall See More Bay Pollution, BOSTON GLOBE, Jan. 6, 1992 (Metro/Region), at 15. 301 Scott Allen, MWRA Pipe Won't Harm Marine Life, Study Says; Ecological Questions Remain For Outfall Tunnel Opponents, BOSTON GLOBE, Oct. 22, 1992 (Metro/Region), at 1. 302 [d. 303 See id. 304 Bays' Legal Fund v. Browner, 828 F. Supp. 102 (D. Mass. 1993). 305 Jeff McLaughlin, U.S. Studies Whether Whales Endangered By Harbor Pipe, BOSTON GLOBE, Apr. 7, 1992 (Metro/Region), at 21. 306 Stellwagen Sanctuary, BOSTON GLOBE, June 26, 1993 (Ed.), at 16. "With sanctuary status comes protection from several dangers, including sand and gravel mining, crackpot schemes for floating resorts and the unwise disposal of pollutants." [d. 307 [d. Stellwagen Bank also supports more than a dozen species of seabirds and is a haven for sport and commercial fishing and whale-watching. Combined, the whale-watching and com­ mercial fishing industries make over $20 million a year exploiting the resources of Stellwagen Bank. [d. 308 Bays' Legal Fund, 828 F. Supp. at 105. 398 ENVIRONMENTAL AFFAIRS [Vol. 22:365 and thus most important of the endangered species inhabiting the waters around Stellwagen Bank is the Right Whale.309 The Right Whale was hunted for years and is now considered the most endangered of the large whales.310 Currently, no more than 350 Right Whales are believed to be living in the world.3ll Stellwagen Bank is known to be one of only five habitats for the Right Whale between the Bay of Fundi and Florida, and each year forty to fifty Right Whales are known to feed in the waters near Stellwagen Bank.3l2 These whales feed for up to fifteen hours a day on the micro­ scopic plankton in the ocean's waters.3l3 Hence, any effects that the outfall could potentially have on the whales or the plankton on which they feed is of vital importance to their continued existence.3l4 As a result, the Right Whale became the focus of an all-out attack on the outfall project.3l5 In Bays' Legal Fund v. Browner, Bays' Legal Fund and Green­ world, two environmental advocacy groups opposed to the outfall, challenged EPA's approval of the construction of the outfalta16 The plaintiffs sought to halt construction of the outfall by claiming that EPA had violated the Endangered Species Act (ESA), as well as the NEPA and the Marine Mammal Protection Act, when it approved the construction of the outfall.3l7 Bays' Legal Fund v. Browner was tried in Federal District Court by Judge Mazzone and construction of the outfall continued as the case was being heard.3l8 After noting that "the importance of this litigation and our nation's laws to protect endangered species cannot be overstated,"3l9 Judge Mazzone ruled in favor of EPA, finding that the plaintiffs could not prevail on the merits of any of their claims.320 To the plaintiffs' claims

309 The Right Whale, The Right Protection, BOSTON GLOBE, Apr. 20, 1992 (Ed.), at 12. 310 McLaughlin, supra note 305, at 21. "For early New Englanders, the right whale to hunt was the one that floated on the surface when killed, rather than sinking beneath the waves, meaning that it could be hunted from shore and its carcass towed ashore-and giving the whale its name." The Right Whale, The Right Protection, supra note 309, at 12. 311 McLaughlin, supra note 305, at 21. 3121d. 313 See id. 314 See id. 315 Dianne Dumanoski, Suit Aims To Halt Tunnel, Protect Whales In Bay, BOSTON GLOBE, Mar. 20, 1993 (Metro/Region), at 35. "Vowing to make the Northern right whale 'the spotted owl of the East Coast; a whale protection advocate ... filed suit in federal court to halt the construction of the MWRA's outfall tunnel into Massachusetts Bay." ld. 316 Bays' Legal Fund v. Browner, 828 F. Supp. 102, 104-05 (D. Mass. 1993). 3171d. at 108-14. 3181d. at 104. 319 I d. at 105. 32°ld. at 114. 1995] BOSTON HARBOR 399 that EPA failed to comply with the necessary procedural require­ ments for environmental review pursuant to the ESA, Judge Mazzone responded that the claim "strikes this Court as an exaltation of form over substance."321 As to the substantive claims, Judge Mazzone held that the plaintiffs had failed to prove that the outfall was likely to have an adverse effect on the endangered species in and around Stellwagen Bank, and that the plaintiffs had also failed to show that EPA's findings had been arbitrary or capricious.322 Critics of the outfall immediately attacked this decision.323 Oppo­ nents questioned the objectivity of Judge Mazzone since he had been the judge that initially approved the outfall as part of the cleanup.324 However, more important were questions as to the continued useful­ ness of federal endangered species protection laws. EPA had concluded in their 1993 Biological Assessment (BA) that "the discharge of nutrients from the new outfall system is not likely to cause any significant changes to the food chain of the endangered species in the bays."325 In that same BA, EPA also concluded that the endangered species were "not likely to be adversely affected" by the toxins that the outfall would discharge into the Harbor.326 Following EPA's lead, in finding for EPA, Judge Mazzone noted that the "two biological studies by the EPA have demonstrated that the outfall tunnel project is unlikely to have a significant effect on any of the endangered species in the bays."327 The decision of EPA, and thus ultimately that of the court, rested on the "likelihood" of the potential risk to the Right Whale.328

321 [d. at 111. Plaintiffs argued that EPA had failed to conduct a Biological Assessment (BA) of the outfall project prior to any construction contracts being made pursuant to section 7(c) of the ESA. [d. Judge Mazzone found that, when viewed in conjunction with one another, EPA's Draft Supplemental Environmental Impact Statement (DSEIS) and its Final Supplemental Environmental Impact Statement (FSEIS) constituted a Biological Assessment that satisfied section 7(c) of the ESA. [d. 322 [d. at 114. Although the court-run cleanup seems to constitute a formal adjudicatory process, the court's review here was limited to a review of the SEIS and the 1993 BA, which the court deemed to constitute informal agency adjudication. Thus, the court applied the arbitrary and capricious standard of review articulated in Camp v. Pitts, 411 U.S. 138, 142 (1973) ("arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"). See id. at 107. 323 See Scott Allen, Judge Gives Go-Ahead 1b Sewage Pipe; Tunnel To Aid Harbor Cleanup, BOSTON GLOBE, July 27, 1993 (Metro/Region), at 1. 324 See id. "I'm disgusted that somebody with so much power would abuse it like that," said Mary Loebig, co-director of Stop the Outfall Pipe. ''We have a judge who is personally invested in a decision that was made in 1988." [d. 325 Bays' Legal Fund, 828 F. Supp. at 108 (emphasis added). 326 [d. at 109 (emphasis added). 327 [d. at 113 (emphasis added). 328 See id. at 108-14. 400 ENVIRONMENTAL AFFAIRS [Vol. 22:365

Opponents claimed that the "likelihood" of harm to the bay's endan­ gered species could not be established because of lack of evidence on the potential effects.329 Thus, neither side could clearly say that the potential for adverse effects was or was not likely.3ao Based on this, opponents asserted that such a lack of evidence should support the halting, rather than the continuation, of the project until further data could be collected and researched.331 However, the ESA calls for a different result, as noted by Judge Mazzone in his opinion: If and when there is concrete, scientific evidence that substanti­ ates the likelihood of a threat, it will be appropriate to reconsider the wisdom, not to mention the legality, of the outfall tunnel as a means of effluent discharge. Until then, however, the ESA does not require the cessation of activities ....332 Of course, opponents point out that by the time such evidence might be compiled, the damage already may have occurred.333 Therefore, the outfall tunneling is continuing, despite the unknown effects the discharge of effluent will have on Stellwagen Bank, and to a lesser degree, on Massachusetts Bay. It is possible, however, that these concerns will be revisited as the project proceeds. Recent calls for reductions in the cost of the cleanup have led to proposed cutbacks in the clean-up project.334 This could cause a reduction in the amount of treatment of the effluent and therefore increase the potential for harm to the endangered species of Stellwagen Bank.335 If this does indeed occur, the issue may be played out again in court.

C. Fixing the Combined Sewer System Addressing the problem of the combined sewer overflows (CSOs) is just as important to the Boston Harbor Cleanup as sufficient effluent treatment and the elimination of sludge discharges.336 When

329 Allen, supra note 323, at 1. 330 See Bays' Legal Fund, 828 F. Supp. at 108-09. 331 See id. 332 [d. at 109. 333 The Right Whale, The Right Protection, supra note 309, at 12. But the right whale is not just an overgrown (at 60 tons) snail darter standing in the way of progress; it is an endangered species highly symbolic of man's deliberate squandering of a common natural heritage. If the right whale cannot be protected, the chances for survival of other threatened creatures are not good. [d. 334 See Scott Lehigh, MWRA Asks For Harbor-Cleanup Cutbacks, Seeks Court OK On Steps 7b Save $ 850M-plus, BOSTON GLOBE, June 17, 1993 (Metro/Region), at 33. 330 See id. 336 Reinert, supra note 126, at 1. 1995] BOSTON HARBOR 401 the capacity of these combined sewers is exceeded, raw sewage is discharged through approximately eighty-six overflow outfalls.337 The result is similar to that which occurs when sewage is discharged from Moon Island or the Nut Island bypasses.338 Essentially, raw, untreated sewage is discharged directly into the waters of Boston Harbor.339 These esos have been found to be the direct cause of up to fifty or more beach closings a year in the Greater Boston area.340 The major difficulty in rectifying the eso problem is that most of the esos were built prior to 1910 and are therefore all buried under the ever-expanding city of Boston.341 As a result, direct repairs to the system that could increase its capacity to transport sewage to the treatment plants were deemed not to be feasible based on the logistics and expense of digging up the city.342 However, it was clear that no matter how the MWRA went about fixing the eso problem, it would be an expensive component of the cleanup.343 Initial eso clean-up efforts centered on the construction of auto­ mated combined sewer overflow screening plants.344 These plants are designed to screen out most floating material in the sewage and then treat the remaining sewage with chlorine disinfectant to kill most of the bacteria before it is discharged into Boston Harbor.345 However, these plants were expensive and did not even provide primary treat­ ment, thus the costs of these plants was not commensurate with the benefits derived therefrom, so the MWRA sought other options for handling the eso problem.346 Eventually, the MWRA approved a plan that called for the con­ struction of an underground tunnel storage area.347 Specifically, the proposal calls for a sixteen mile long, twenty-five foot in diameter tunnel approximately 400 feet underground.348 'I\venty miles of sur­ face consolidation conduits would join the tunnel with the combined

337 Dumanoski, supra note 101, at 26. 338 See Doneski, supra note 3, at 572-73. 339 See id. 340 Dumanoski, supra note 101, at 26. 34! Doneski, supra note 3, at 572. 342 Hecht, supra note 7, at 34. 343 See Dumanoski, supra note 101, at 26. 344 Plants Gut Boston Ove1jlows, ENGINEERING NEWS-REC., Mar. 30,1989, at 16. 345 [d. 346 See id. The MWRA only planned the construction of two such plants prior to the decision to seek alternatives. [d. The first plant cost approximately $4.8 million and the second, which had twice the capacity, cost around $8.2 million. [d. The first plant went on line in 1989. [d. 347 Boston GSa Plan Approved, ENGINEERING NEWS-REC., Oct. 4, 1990, at 23. 348 [d. 402 ENVIRONMENTAL AFFAIRS [VoL 22:365 sewers.349 When the capacity of the combined sewers is exceeded, the overflow will be diverted to the storage tunnel where it will be held until it can be pumped to Deer Island for treatment.350 The tunnel would have the capacity to store up to 350 million gallons of sewage and would be equipped with two pump stations that could each pump up to 150 mgd to Deer Island.351 While there has been general agreement that this is the most effective and cost efficient means of handling the GSO dilemma, the major stumbling block for the storage tunnel has been when and how to pay for the project.352 The cost of the storage tunnel is estimated to be approximately $1.2 billion.353 Paying for this on top of the $6.1 billion price tag of the rest of the cleanup has been restrictive.354 As a result, the storage tunnel has not moved past the planning stages and is now facing potential cutbacks.355 The MWRA has suggested to EPA and Judge Mazzone that, by reducing the size and configuration of the storage tunnel project, the MWRA could reduce the overall cost of the cleanup by as much as $700 million.356 While no alternatives have yet been proposed, the MWRA and EPA did agree to make attempts to come up with a new plan addressing the GSO problem, and hopes are that this plan will be completed by the end of 1994.357 Of course, any such cutback would require court approvaL While the GSO project has taken a back seat to the other major components of the Harbor cleanup, it remains an essential element in the effective cleanup of the Harbor.358 As the cleanup continues to move forward, it is important that this aspect does not disappear as officials react to the angry voices of ratepayers when the cost of the cleanup finally hits their pocketbooks.359 Without an effective solution

349 Id. 350 Id. 351 Id. 352 See id. 353 Dumanoski, supra note 101, at 26. 354 See id. According to Paul Levy, former executive director of the MWRA "[t]here are financial problems with taking on a $1.2 billion project at the same time you are already doing a $6 billion project. There are limits to what you can collect from the financial markets and limits to what people can afford to pay." Id. 355 See Lehigh, supra note 334, at 33. 356 Id. 357 Boston Harbor: EPA Favors Plan That Would Save MWRA $, Greenwire (Clean Water), Aug. 6, 1993. 358 See Lehigh, supra note 334, at 33. 359 See id. 1995] BOSTON HARBOR 403 to the CSO dilemma, the other components of the cleanup will be undermined as thousands of gallons of raw, untreated sewage con­ tinue to pour into Boston Harbor.360

V. PAYING FOR THE CLEANUP OF BOSTON HARBOR While separate challenges have been waged against certain compo­ nents of the Boston Harbor Cleanup, there has been one continuous focus of opposition to the entire project: the price tag.361 Massachu­ setts's failure to take advantage of federal funding for the $6.1 billion cleanup when it was available in the 1970s has resulted in a taxpayers' nightmare, where water and sewer rates continue to escalate as the costs of the cleanup are realized.362 The question is, when does the balance shift from the need for a cleanup to the needs of ratepayers not to be overborne by their water rates? The failure of the MDC and then Governor Michael Dukakis to commence the cleanup of Boston Harbor when the 1972 amendments to the FWPCA first became law resulted in the loss of significant federal funds for the project.363 Had the cleanup been commenced in the 1970s, the federal government would have shouldered up to sev­ enty-five percent of the cost of the cleanup.364 Instead, the ratepayers in the forty-three communities that are serviced by the MSS are currently facing a bill for ninety-two percent of the cleanup.365 This has resulted in a backlash of opposition against the expensive cleanup as ratepayers have seen their water rates increase almost exponen­ tially.366 Since 1985, water rates for the communities serviced by the MSS have risen over 300%.367 In 1993, the average household's water bill was approximately $575.368 By the turn of the century, the average household water bill is expected to reach $1,200 absent increases in federal and state funding.369 In response, ratepayers have begun to

360 See Doneski, supra note 3, at 572-73. 361 See, e.g., Peter Howe, 'A Ratepayer's Nightmare', BOSTON GLOBE, July 16, 1993 (MetrolRe- gion), at 19; Boston Harbor: Ratepayers Stage Another Tea Party, supra note 36. 362 See Boston Harbor: Ratepayers Stage Another Tea Party, supra note 36. 363 See Hecht, supra note 7, at 33. 364 [d.; Tye, supra note 35, at 25. 365 Boston Harbor: Ratepayers Stage Another Tea Party, supra note 36. 366 See Faith Sousa Schaefer, Boston's Big Pipe, SEA FRONTIERS, July, 1993, at 6. 367 Scott Allen, Reduced Water Rate Hike Faces Board Vote, BOSTON GLOBE, June 29, 1993 (MetrolRegion), at 27. 368 [d. 369 [d. 404 ENVIRONMENTAL AFFAIRS [Vol. 22:365 challenge their bills, most poignantly by staging a modern-day Boston Tea Party during which over four hundred ratepayers threw their sewer and water bills into Boston Harbor.370 Ratepayer revolts have had two effects: first, they have evoked political participation in at­ tempts to acquire additional federal and state funds, and second, they have resulted in proposed cutbacks to the cleanup.371 The issue of funding for the Boston Harbor Cleanup has been a political "hot potato" since Vice President George Bush attacked presidential candidate Michael Dukakis over the condition of the Har­ bor during the 1988 presidential campaign.372 Bush later, as President, did not include money in his budget to help clean up the Harbor.373 N either Congress nor the Massachusetts Legislature has been par­ ticularly willing to help fund the cleanup.374 Instead, the little govern­ mental funding which the MWRA has received has come only after fierce lobbying by the MWRA and the Massachusetts representatives in Washington.375 While the MWRA has managed to get approxi­ mately $500 million from the federal government in the past five years, it has always been "on a check-by-check basis."376 The Massachusetts Legislature has also been little help to the MWRA.377 For the fiscal year 1994, state legislators only approved $18 million for the MWRA.378 In doing so, communities not serviced by the MWRA have effectively turned their back on the clean-up effort.379 Instead of helping to fund the cleanup, Massachusetts lawmakers have taken the opposite route and have fought for cutbacks in the cleanup.38o

370 Boston Harbor: Ratepayers Stage Another Tea Party, supra note 36. 371 See, e.g., Judge Asked To Approve Cut In Boston Harbor Spending, supra note 62; James Franklin, Environmentalists Assail Plan To Cut Harbor Cleanup, BOSTON GLOBE, Mar. 23, 1991 (Metro/Region), at 40. 372 Tye, supra note 35, at 25. 373 Id. 374 See Dianne Dumanoski, Judge Voices Concerns Over Harbor Cleanup, BOSTON GLOBE, Jan. 3, 1992 (Metro/Region), at 15. 375 See Scott Allen, California's Plan Could Benefit MWRA, BOSTON GLOBE, Nov. 9, 1993 (Metro/Region), at 21. Senators Edward M. Kennedy and John F. Kerry have been most effective in obtaining federal funding for the MWRA. See Scott Allen, Kennedy, Kerry Say Boston May Get $100 Million For Harbor Cleanup, BOSTON GLOBE, June 22,1993 (Nat'l/For­ eign), at 10. 376 Allen, supra note 375, at 21. 377 See Michael Grunwald, Little Political Unity On MWRA Rate Relief, BOSTON GLOBE, June 5, 1993 (Metro/Region), at 15. 378Id. 379 See id. 380 See id. 1995] BOSTON HARBOR 405

At the center of the conflict over the sewer rates are the secondary treatment and combined sewer overflow portions of the cleanup.381 Massachusetts state officials, including Governor William Weld, have called for scaling back both projects.382 However, environmentalists warn that such cutbacks could result in the continued illegal pollution of Boston Harbor.383 These proposed cutbacks cause outfall opponents to worry.384 If the secondary treatment project is scaled back, there may be a greater risk to Massachusetts Bay and Stellwagen Bank.385 While the more environmentally sound approach to the concerns of the ratepayers may be to have Congress and the Commonwealth of Massachusetts contribute more to the cleanup, it is more likely that lawmakers will continue to support the more politically advantageous position that the cleanup should be scaled down.386 Of course, any such scale-back would have to be approved by Judge Mazzone, who is on the record as opposing such measures.387 He has noted that "[ w ]e've been underpaying for generations. We're being called to pay for those years of neglect and delay. That's unfair in a lot of ways, but the goal is so important. And future generations will benefit from our paying now."388 In response to ratepayers' concerns over the cost of the cleanup, Governor Weld recently put his support behind a proposal that would give him control over the MWRA.389 This pleased ratepayers but concerned those involved in the cleanup of the Harbor.390 Weld is

On Beacon Hill, there has been a veritable flurry of solutions de jour.... There have been legislative proposals to abolish the MWRA and to place it under gubernatorial control. ... The Weld administration and the Legislature have unveiled separate plans to scale back the $5.7 billion Boston Harbor cleanup in the name of rate relief.... Id. 381 See Massachusetts: Weld Wades Into The Water Rate Fray, Greenwire (State Reports), June 7, 1993. 382 Id. 388 Lehigh, supra note 334, at 33. 384 See id. 385 See id. 386 See id. 387 Dumanoski, supra note 374, at 15. Judge Mazzone has stated, "[i]f [legislators] think the solution is to freeze rates and save their constituents money, then the project will come to a stop. I don't think anyone wants that." Id. 388 Id. 389 Don Aucoin & Peter Howe, Weld Turns Willing To Snap Leash On MWRA, BOSTON GLOBE, June 30, 1993 (Metro/Region), at 21. "People might say, 'If he wants that hot potato, let's let him have it,' Weld said, adding with evident relish: 'It would then be squarely in my lap, that's for sure.'" Id. 390 See id. 406 ENVIRONMENTAL AFFAIRS [Vol. 22:365 seeking control in order to be able to reduce rates.391 He is not doing this to make sure that the cleanup is successful.392 One of the most important reasons for the creation of the MWRA was to create an agency free from political influence so that it could effectively finance the cleanup.393 A takeover by the governor would seriously threaten the MWRA's ability to remain separated from the political wars that have been raging over water and sewer rates.394 If this occurs, the cleanup of Boston Harbor could be in serious peril.

VI. EFFECT OF A COURT-RuN CLEANUP OF BOSTON HARBOR

A. When the Court is in Charge Evaluating the potential for the success of the Boston Harbor Cleanup in 1985, one commentator noted that "cleaning up Boston Harbor demands an atmosphere of cooperation and commitment" amongst the MWRA, EPA, and the communities serviced by the MSS.395 Instead of cooperation and commitment, the Boston Harbor Cleanup has had to overcome political and economic opposition and community self-interest. In overcoming these barriers to the cleanup of Boston Harbor, some credit must go both to the MWRA and EPA. However, absent the role of the court and Judge Mazzone in the clean-up process, it is unlikely that the progress that has been made since 1985 would have been realized as effectively or efficiently. The history of the pollution problem in Boston Harbor and the recent clean-up attempt have demonstrated both the strengths and weak­ nesses of court involvement in a clean-up project of such magnitude and have shown that effective administration of such a project re­ quires a neutral and powerful force such as Judge Mazzone.396 The Boston Harbor Cleanup has demonstrated that the primary strength of court involvement in this type of situation is its ability to serve as a check on both the executive and legislative branches of the government. Acting in precisely the manner that the court was de­ signed to operate in the Constitution, it has been able to remain insulated from the political pressures that hindered an effective

391 See id. 392 See id. 393 See Doneski, supra note 3, at 614. To separate the MWRA from the political influences associated with agency appropriation, the MWRA was given the power to issue its own bonds and set sewer rates sufficient to meet all operational aud cleanup costs. ld. 394 See Aucoin & Howe, supra note 389, at 21. 395 Doneski, supra note 3, at 625. 396 See Haar, supra note 4, at 642. 1995] BOSTON HARBOR 407 cleanup administered by the executive and legislature.397 As a result, the court has been able to ensure that the cleanup is a legal, if not "political," success. The Boston Harbor Cleanup is a prime example of a situation where political inertia resulted in the continued environmental devastation of a vital natural resource, irrespective of violations of state and federal environmental laws.398 Even after the courts ordered compli­ ance with applicable environmental statutes and the cleanup of Bos­ ton Harbor, the Massachusetts Legislature was unwilling to be re­ sponsible for the difficult decisions that a successful cleanup required.399 The unwillingness of MSS communities to shoulder the burden of the cleanup-coupled with a political climate that, at times, may have lessened the effectiveness of the MWRA and EPA-further exasperated the difficulty of producing an effective cleanup.4oo The inability of any group to bear the burden of making the difficult and unpopular decisions required to clean up Boston Harbor made a court-run cleanup necessary.401 And in this case, the court has deliv­ ered. Judge Mazzone has been able to use the power of the court to facilitate the cleanup by making some of the more politically unpleas­ ant decisions and, in the alternative, providing legislators with ex­ cuses for backing positions that would otherwise be politically crip­ pling. Illustrating the court's ability to overcome this political deadlock was Judge Mazzone's use of the new sewer hookup ban to pressure the Massachusetts Legislature into transferring the land for the Walpole site from the Department of Corrections to the MWRA.402 By refusing to make the ultimate decision himself, but providing lawmak­ ers with an overriding reason to transfer the land, Judge Mazzone effectively forced those responsible for the decision to act.403 Rather than allowing lawmakers to rely on their ability to avoid the problems associated with the Boston Harbor Cleanup, as they had consistently done in the past, Judge Mazzone forced them to take action to find an alternative site.404 In doing so, the court served as a check on both the executive and legislative branches and made sure that those who

397 u.s. CONST. art. III. 398 See supra notes 22---B1 and accompanying text. 399 See supra notes 187-92 and accompanying text. 400 See supra notes 366-75 and accompanying text. 401 See Haar, supra note 4, at 642. 402 See Franklin, supra note 193, at 1. 403 See id. 404 See id. 408 ENVIRONMENTAL AFFAIRS [Vol. 22:365 were responsible for the difficult clean-up decisions would not be able to hide from them. Furthermore, by ensuring that the "legal" option is the required course of action, the court sidesteps issues that could unnecessarily delay the cleanup.405 The court's involvement has enabled the MWRA and EPA to avoid continuous haggling with outside opponents who favor courses of action that have not been adopted by these agen­ cies.406 The question of the effectiveness and cost efficiency of secon­ dary treatment is just one example. By enforcing the legal standard of secondary treatment set forth in the Clean Water Act, the court effectively shut the door to arguments that favored an increase or decrease in the amount of treatment the sewage receives and in doing so freed the agencies from burdensome evaluations and explanations regarding what level of treatment is acceptable.407 In this manner, the court was able to keep the cleanup of Boston Harbor on schedule. However, the necessity of the court to follow the legal rather than political course for the cleanup also contributed to the weakness of a court-run cleanup. Since the court's decisions are based on the law and not always on the political and economic realities that surround the decision, sometimes the goals of the court, and thus the cleanup, may run contrary to other societal interests such as not having to chose between paying your water and sewer bills or eating. As a result, at times the court can seem inflexible and/or short-sighted. The court's decisions to push forward with its compliance schedule so that the cleanup stays on schedule may be one such example of the inflexibility of the court's role in the cleanup. In addition, those opposed to the court's involvement in the cleanup often question the objectivity of a particular judge who is intimately involved in every aspect of the project.40B It may be true that there is some risk involved in such a situation, where the judge has an "in­ vestment" in the successful outcome of a project and is not politically accountable. However, the Boston Harbor Cleanup has clearly shown that it is just those types of decisions-where the good of the project may impose a burden on a segment of the public which it deems unacceptable-that are impossible to make without insulation from "political accountability."

405 See supra notes 221---83 and accompanying text. 406 See supra notes 221---83 and accompanying text. 407 See supra notes 221---S3 and accompanying text. 408 See Allen, supra note 323, at 1. 1995] BOSTON HARBOR 409

Nevertheless, irrespective of any weakness inherent in the court's role as overseer of the cleanup, Judge Mazzone has been able to do what generations of legislators and executive officials have failed to do. With the power of the court, Judge Mazzone has turned the idea of cleaning up Boston Harbor from fiction into fact. Because of this, the Boston Harbor Cleanup illustrates how the judiciary may by employed to solve environmental problems that the executive and legislative branches of our government are unwilling or afraid to face. 409 Originally, it was hoped that the lawmakers, the executive agencies, and the communities serviced by the MSS could come together with one common objective-a clean Boston Harbor.410 However, the social, political, and economic realities of the clean-up project made that impossible.411 So the court and Judge Mazzone "forced" these groups to do what they otherwise could not. The only question now is whether or not Judge Mazzone can bring this ugly chapter in Massa­ chusetts history to a successful end.

B. The Future of Boston Harbor The cleanup of Boston Harbor is still far from completion. The new primary treatment plant on Deer Island will not be operational until 1995, the new outfall tunnel will not be completed until 1999, and the secondary treatment facility will not come on line until after the turn of the century.412 Moreover, a solution for the combined sewer outfall problem is yet to be agreed upon.413 This means that there are still more difficult questions to be dealt with before the cleanup of Boston Harbor is complete. The role of the court in answering these questions will be as vital to the cleanup as has been its involvement up until this point. While most Massachusetts citizens consider the cleanup of Boston Harbor to be both an important environmental and economic project, the economic reality of the 1990s has many groups calling for cutbacks in the cleanup.414 As the political pressure has mounted, Governor William Weld, local mayors, the MWRA, and even EPA have to vary-

409 See Haar, supra note 4, at 642. 410 See Doneski, supra note 3, at 625. 411 See Haar, supra note 4, at 642. 412 See, e.g., Hecht, supra note 7, at 34-35. 413 See Boston csa Plan Approved, supra note 347, at 23. 414 See, e.g., Indira A.R. Lakshmanan, Poll Finds Support For Harbor Cleanup, BOSTON GLOBE, Nov. 27,1993 (Metro/Region), at 16; Lehigh, supra note 334, at 33. 410 ENVIRONMENTAL AFFAIRS [Vol. 22:365 ing degrees suggested cutbacks in clean-up projects.415 These pro­ posed cutbacks are the direct result of increasing political pressure from ratepayers who are facing ever increasing water and sewer bills.416 However, someone has to pay for the cleanup, and it has to be done now. The process of cleaning up Boston Harbor has progressed too far to be undermined now that its cost is finally being felt by the average citizen. While the politically advantageous approach to the financial problems that the cleanup presents is to seek cutbacks in the project, this is clearly not the most environmentally responsible course of action. Therefore, it will be essential in the coming months and years that the court not allow politically motivated cutbacks to circumvent the primary objectives of the cleanup. Rather than allow­ ing lawmakers and the MWRA to take the most politically advanta­ geous and least difficult route of cutbacks, Judge Mazzone may need to advance the objectives of the cleanup by pressuring these groups to secure additional funding for the cleanup instead. It is clear that as the economic impact of the Boston Harbor Cleanup bears down on the citizens of Massachusetts, challenges to cleanup will continue to appear. However, if Judge Mazzone continues to keep the executive and legislative branches in check as he has done for the past nine years, the ultimate success of the cleanup should eventually be realized. At that point, the politicians can stand on their soapboxes and proclaim to their constituents that they have saved Boston Harbor. But in the final analysis, that goal will never have been reached without the oversight of the court and the long-term involvement of Judge A. David Mazzone.

VII. CONCLUSION For almost two centuries, Massachusetts has polluted one of its most vital natural resources, Boston Harbor. Efforts to stop the pol­ lution and to clean up Boston Harbor have had little if any success in the past, mainly due to a lack of political initiative and support. As a result, in 1985, litigation initiated by the city of Quincy, led to the establishment of the Massachusetts Water Resources Authority. This

416 See, e.g., Lehigh, supra note 334, at 33; Dianne Dumanoski, Mayors Th Press For Scaling Down Of MWRA Sewer Project, Rate Relief, BOSTON GLOBE, June 9, 1993 (Metro/Region), at 26; Scott Allen, Weld Is Warned On Bid Th Trim Harbor Cleanup, BOSTON GLOBE, June 8, 1993 (Metro/Region), at 22; Scott Allen, Official Says EPA Flexible On Cleanup Costs, BOSTON GLOBE, May 5, 1993 (Metro/Region), at 34. 416 See Lehigh, supra note 334, at 33. 1995] BOSTON HARBOR 411 agency was established to shoulder the Herculean task of cleaning up "America's Dirtiest Harbor." The creation of the MWRA raised new hopes that Boston Harbor would finally be cleaned up. However, the MWRA was not able to overcome the well-rooted political lethargy of the Massachusetts po­ litical machine and therefore the Environmental Protection Agency and the Conservation Law Foundation called upon the courts to moni­ tor the Boston Harbor Cleanup. The court's involvement in the cleanup has broken down the tradi­ tional political, social, and economic barriers to a successful cleanup and as a result the cleanup has progressed, for the most part on schedule, for the past nine years. This is largely due to the "gun-to­ the-head" rulings of Judge A. David Mazzone who has overseen the cleanup. As the cleanup continues into the next century, it will be essential to its successful completion that the court continue to counter the political deadlock and economic backlash associated with the Harbor cleanup. While cooperation and commitment between the Massachusetts Legislature, the MWRA, EPA, and the local commu­ nities would lend itself to the successful completion of the cleanup, only the continued involvement of the court will ensure that end.